Gregory Bolin v. Renee Baker ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY BOLIN, No. 15-99004
Petitioner-Appellant,
D.C. No.
v. 3:07-cv-00481-
MMD-VPC
RENEE BAKER, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted March 18, 2021
San Francisco, California
Filed April 26, 2021
Before: William A. Fletcher, Richard A. Paez, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge W. Fletcher
2 BOLIN V. BAKER
SUMMARY*
Habeas Corpus
The panel reversed the district court’s denial of a stay and
abeyance pending exhaustion of unexhausted claims, under
Rhines v. Weber, 544 U.S. 269 (2005), and remanded, in a
case in which Nevada state prisoner Gregory Bolin filed a
28 U.S.C. § 2254 habeas corpus petition contesting the
constitutionality of his conviction and capital sentence.
The district court held that Bolin lacked “good cause”
under Rhines for his failure to exhaust because his state post-
conviction counsel’s ineffective assistance of counsel (IAC)
was not “sufficiently egregious.” This court subsequently
held in Blake v. Baker, 745 F.3d 977 (9th Cir. 2014), that IAC
by a petitioner’s state-court counsel satisfies the “good cause”
standard under Rhines.
The panel held that the district court erred in applying the
standard later rejected in Blake, and remanded for the district
court to apply the proper standard.
COUNSEL
Elizabeth Richardson-Royer (argued), San Francisco,
California; Amy M. Karlin, Interim Federal Public Defender;
Jonathan Schneller and Andrew Yamsuan, Deputy Federal
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BOLIN V. BAKER 3
Public Defenders; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.
Jessica E. Perlick (argued), Senior Deputy Attorney General;
Heidi Parry Stern, Chief Deputy Attorney General; Aaron D.
Ford, Attorney General; Attorney General’s Office, Las
Vegas, Nevada; for Respondents-Appellees.
Ishan K. Bhabha and Corinne M. Smith, Jenner & Block
LLP, Washington, D.C.; Karen A. Newirth, Innocence Project
Inc., New York, New York; for Amicus Curiae The
Innocence Project.
OPINION
W. FLETCHER, Circuit Judge:
Gregory Bolin, a Nevada prisoner, filed a habeas corpus
petition under 28 U.S.C. § 2254 contesting the
constitutionality of his conviction and capital sentence. The
petition was “mixed,” including both exhausted and
unexhausted claims. The district court denied a stay and
abeyance under Rhines v. Weber, 544 U.S. 269 (2005),
holding that Bolin lacked “good cause” under Rhines for his
failure to exhaust. In the view of the district court, Bolin did
not satisfy the Rhines standard because his state post-
conviction counsel’s ineffective assistance of counsel
(“IAC”) was not “sufficiently egregious.” In a habeas case
decided after the district court’s decision, we held that IAC
by a petitioner’s state-court counsel satisfies the “good cause”
standard under Rhines. Blake v. Baker, 745 F.3d 977 (9th
Cir. 2014). We reverse and remand for reconsideration of
Bolin’s Rhines motion under the proper standard.
4 BOLIN V. BAKER
I. Factual and Procedural Background
In 1996, a Nevada jury convicted Bolin of first-degree
kidnapping, sexual assault, and the first-degree murder of
Brooklyn Ricks. The jury sentenced him to death. On direct
appeal, the Nevada Supreme Court affirmed his conviction
and sentence. See Bolin v. State, 960 P.2d 784, 804 (Nev.
1998). His motion for rehearing was denied, as was his
petition for certiorari to the United States Supreme Court.
Bolin v. Nevada, 525 U.S. 1179 (1999).
Bolin filed a pro se habeas petition in Nevada state court
in April 1999. Pursuant to Nevada law, the state court
appointed counsel to represent Bolin. See Nev. Rev. Stat.
Ann. § 34.820(1)(a). The state district court denied Bolin’s
petition in 2005, and the Nevada Supreme Court affirmed in
2007. The Supreme Court denied his petition for certiorari.
Bolin v. Nevada, 552 U.S. 1231 (2008).
Bolin filed a habeas petition in federal district court in
Nevada in 2007. In his second amended petition, he raised
fifty-five claims, of which twenty-nine were unexhausted
either in whole or in part. The district court held that Bolin
would need to abandon those claims or face dismissal of his
entire petition under Rose v. Lundy, 455 U.S. 509 (1982).
Bolin argued that there was good cause under Rhines for his
failure to exhaust because his post-conviction counsel had
been ineffective in failing to investigate and raise the
unexhausted claims. The district court rejected this argument
because Rhines stays are appropriate only in “limited
circumstances,” and an IAC claim “could be raised in
virtually every case.”
BOLIN V. BAKER 5
On a motion for reconsideration, the district court
reasoned that it “d[id] not matter” what support Bolin
provided for his IAC claim because he was “bound by the
acts of his counsel.” The court cited with approval district
court decisions holding that good cause for failure to exhaust
required an excuse “outside the control of the petitioner and
his counsel.” The court held that a “sufficiently egregious”
IAC claim might “[c]oncievably” support a showing of good
cause.
After the district court denied his Rhines motion, Bolin
abandoned his unexhausted claims. In 2015, the district
court, now with a different judge, denied habeas relief on
Bolin’s exhausted claims. The court noted that our
intervening decision in Blake had cast doubt on its earlier
decision to deny the Rhines stay and granted a certificate of
appealability to allow Bolin to appeal on that issue.
In his appeal to us, Bolin raises two uncertified issues in
addition to the Rhines issue: (1) that the eyewitness
identification of a key witness, arranged by law enforcement,
was unnecessarily suggestive and violated due process under
Manson v. Brathwaite, 432 U.S. 98 (1977); and (2) that in
failing to deal appropriately with DNA evidence, Bolin’s two
trial counsel were ineffective under Strickland v. Washington,
466 U.S. 668 (1984). We ordered supplemental briefing on
these issues. However, we do not reach either issue today
and express no view on their merits. Because we do not
reach those issues, we also do not reach Bolin’s motion for
judicial notice.
On the certified issue, we hold that the district court
applied the wrong standard when it denied Bolin’s Rhines
6 BOLIN V. BAKER
motion. We reverse and remand for the application of the
proper standard.
II. Standard of Review
We review the district court’s denial of a stay and
abeyance motion for abuse of discretion. Blake, 745 F.3d
at 980.
III. Discussion
Under Lundy, federal courts may not adjudicate “mixed
petitions” for habeas corpus—that is, petitions that contain
both exhausted and unexhausted federal claims. 455 U.S.
510. When Lundy was decided, there was no statute of
limitations on the filing of habeas petitions. A habeas
petitioner could return to state court to exhaust his claims and
refile in federal court after exhausting without worrying about
the timeliness of a refiled federal petition.
This changed under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). AEDPA preserved Lundy’s
total exhaustion requirement, but imposed a new one-year
statute of limitations on the filing of federal habeas petitions.
See 28 U.S.C. §§ 2254(b)(1)(A), 2244(d). Though state post-
conviction proceedings toll the limitations period under
AEDPA, id. § 2244(d)(2), the pendency of a habeas petition
in federal court does not. See Duncan v. Walker, 533 U.S.
167, 181–82 (2001). As a result, a federal habeas petitioner
was trapped between Lundy and the one-year statute of
limitations. The trap required petitioners to abandon
unexhausted claims, without regard to their merit and without
regard to the reason why they were unexhausted, in order to
pursue their exhausted claims.
BOLIN V. BAKER 7
The Supreme Court addressed this problem in Rhines. It
held that federal district courts may issue a stay-and-abeyance
order “in limited circumstances” in order to permit a
petitioner with unexhausted claims to return to state court to
exhaust them. Rhines, 544 U.S. at 277. Stay and abeyance is
appropriate under Rhines when “[1] the petitioner had good
cause for his failure to exhaust, [2] his unexhausted claims
are potentially meritorious, and [3] there is no indication that
the petitioner engaged in intentionally dilatory litigation
tactics.” Id. at 278.
Subsequent case law has elaborated on what a petitioner
must show to satisfy Rhines’ “good cause” requirement. The
Supreme Court has held that a “petitioner’s reasonable
confusion about whether a state filing would be timely will
ordinarily constitute ‘good cause.’” Pace v. DiGuglielmo,
544 U.S. 408, 416 (2005) (citing Rhines, 544 U.S. at 278).
Our court has held that good cause does not require a
showing of “extraordinary circumstances.” Jackson v. Roe,
425 F.3d 654, 661–62 (9th Cir. 2005). However, the good
cause standard is not met by a bare statement that a petitioner
was “under the impression” that his claims were exhausted.
Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008).
In Blake, federal habeas petitioner Alfonso Manuel Blake
had made an IAC claim, contending that his trial counsel
“fail[ed] to discover and present to the jury evidence of [his]
abusive upbringing and history of mental illness.” Blake,
745 F.3d at 979. The claim was unexhausted because Blake
had not raised it in any of his state-court proceedings. Blake
could secure a stay and abeyance order, allowing him to
return to state court, only if he demonstrated “good cause” for
his failure to exhaust. Blake argued that the good cause
requirement was satisfied because his post-conviction counsel
8 BOLIN V. BAKER
had also been ineffective in failing to discover, investigate,
and present this “readily available” mitigation evidence to the
state habeas court. Id. at 983. The district court denied the
stay. It reasoned that, because a Strickland argument “could
be raised in virtually every case,” it could never satisfy
Rhines. Id. at 979.
We disagreed, holding that Blake had established good
cause under Rhines because he had demonstrated “that [his]
state post-conviction counsel’s performance was defective
under the standard of Strickland.” Id. at 983. He had shown
that his counsel “failed to discover, investigate, and present
to the state courts readily available evidence.” Id. We
reiterated, of course, that a “bald assertion cannot amount to
a showing of good cause” but emphasized that Blake had
provided “a reasonable excuse[] supported by evidence.” Id.
at 982.
We held in Blake that the Rhines standard is “not any
more demanding than the cause standard articulated in
Martinez[ v. Ryan, 566 U.S. 1, 14 (2012)].” Id. at 984.
Martinez excuses state procedural default and permits a
petitioner to entirely “bypass the state court.” Id. (emphasis
added). Logically, Rhines should require no more, as it
permits a petitioner only to “return to state court.” Id.
(emphasis added). We wrote that because a Rhines stay and
abeyance order “does not undercut the interests of comity and
federalism,” it might be permitted in even more situations
than IAC by post-conviction state-court counsel, but we did
not need to reach that question. Id. at 984 & n.7.
We note for the benefit of the district court that after it
ruled on Bolin’s petition we provided guidance as to what
constitutes a “potentially meritorious” claim under Rhines.
BOLIN V. BAKER 9
In Dixon v. Baker, 847 F.3d 714 (9th Cir. 2017), habeas
petitioner Dixon contended that his trial counsel had provided
IAC in failing to object when the prosecution, in its opening
statement, “projected before the jury [his] booking
photograph with the word ‘GUILTY’ written across it.” Id.
at 722. We held that Dixon’s claim satisfied the second
criterion of Rhines because it was not “plainly meritless.” Id.at 722–23 (quoting Rhines, 544 U.S. at 277).
Conclusion
The district court erred in applying the standard we later
rejected in Blake. We reverse and remand for the court to
apply the proper standard in ruling on Bolin’s Rhines motion.
REVERSED and REMANDED.