Jennifer Henderson v. Deborah K. Johnson, Warden , 710 F.3d 872 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JENNIFER LYNN HENDERSON , No. 11-55249
Petitioner-Appellant,
D.C. No.
v. 8:11-cv-00128-
PSG-RZ
DEBORAH K. JOHNSON , Warden,
Respondent-Appellee.
ORDER AND
OPINION
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted
November 8, 2012—Pasadena, California
Filed January 3, 2013
Before: Myron H. Bright,* Susan P. Graber,
and Sandra S. Ikuta, Circuit Judges.
Order;
Per Curiam Opinion
*
The Honorable Myron H. Bright, Senior Circuit Judge for the United
States Court of Appeals for the Eighth Circuit, sitting by designation.
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SUMMARY**
Habeas Corpus
The panel reversed the district court’s summary dismissal,
without leave to amend, of a mixed 28 U.S.C. § 2254 habeas
corpus petition for failure to exhaust state remedies, and
remanded for consideration of all exhausted claims.
The panel held that the district court erred as a matter of
law by dismissing the petition pursuant to Sherwood v.
Tomkins, 716 F.2d 632 (9th Cir. 1983) (holding that district
court may not adjudicate federal habeas petition while
petitioner’s direct state appeal is pending). The panel
explained that Sherwood does not undermine precedent
requiring district courts to first grant leave to amend and, if
requested, to consider a petitioner’s eligibility for a stay
under either Rhines v. Weber, 544 U.S. 269 (2005) (stay of
entire petition), or Kelly v. Small, 315 F.3d 1063 (9th Cir.
2003) (stay of exhausted claims only). Moreover, given the
parties’ agreement that the state courts have now considered
and rejected all of Henderson’s claims, the panel held that all
claims in the federal petition should be allowed to proceed.
COUNSEL
Fay Arfa, Fay Arfa, a Law Corporation, Los Angeles,
California, for Petitioner-Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HENDERSON V . JOHNSON 3
William M. Wood, Supervising Deputy Attorney General,
San Diego, California, for Respondent-Appellee.
ORDER
The request to publish the unpublished memorandum
disposition is GRANTED. The memorandum disposition
filed December 13, 2012, is redesignated as a per curiam
opinion with modifications.
OPINION
PER CURIAM:
Jennifer Lynn Henderson, who is currently serving two
consecutive life sentences without the possibility of parole,
appeals from the district court’s summary dismissal of her
habeas petition for failure to exhaust state remedies. We
conclude that the district court erred in dismissing
Henderson’s petition without offering her leave to amend.
We reverse and remand for the consideration of all exhausted
claims.
Henderson was convicted of two counts of murder in
April 2007. The convictions became final in 2009 after a
California Court of Appeal affirmed the convictions and
denied a petition for rehearing, and the California Supreme
Court denied review. Henderson filed a habeas petition in
state court in January 2011, which was later dismissed as
untimely. Henderson also filed a timely federal habeas
petition in January 2011, several days after her state habeas
filing. Henderson’s federal petition was “mixed,” that is, it
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contained then-unexhausted claims raised in Henderson’s
concurrent state petition, as well as several claims that
Henderson had previously exhausted.
The district court summarily dismissed Henderson’s
federal habeas petition. Citing Sherwood v. Tomkins,
716 F.2d 632 (9th Cir. 1983), the district court determined
that “[t]he Sherwood doctrine requires the petition’s
dismissal” and that “[a] would-be federal habeas petitioner
generally must await the outcome of any pending state-court
challenges to his conviction before proceeding in federal
court.” Henderson filed a motion to reconsider, arguing that
Sherwood was outdated and inapplicable, and that she was
entitled to a stay while exhausting her claims in state court or,
at a minimum, to amend her petition to delete the
unexhausted claims and proceed.
The district court reconsidered but again dismissed
Henderson’s petition, concluding that Sherwood was still
good law and that “[t]here is no valid reason for this case to
proceed at the same time as the prior-filed state habeas
action.” The district court determined that cases regarding
stay and abeyance of mixed petitions were distinguishable
and failed to address Henderson’s request for leave to amend.
Federal courts may not adjudicate mixed habeas petitions,
that is, those containing both exhausted and unexhausted
claims. Rose v. Lundy, 455 U.S. 509, 518–19 (1982).
However, we have explained that a petitioner who files a
mixed petition must, at a minimum, be offered leave to
amend the petition to delete any unexhausted claims and to
proceed on the exhausted claims. See, e.g., Jefferson v.
Budge, 419 F.3d 1013, 1016–17 (9th Cir. 2005) (reversing
and remanding the dismissal of a mixed habeas petition
HENDERSON V . JOHNSON 5
because the district court failed to offer the petitioner the
opportunity to amend his petition to abandon the unexhausted
claims); Kelly v. Small, 315 F.3d 1063, 1069–70 (9th Cir.
2003) (reversing the dismissal of a mixed petition and
remanding “so that the district court can offer Petitioner the
opportunity to dismiss [the unexhausted] claims and proceed
to the merits of the others”), overruled in part on other
grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007);
Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000)
(“[D]istrict courts must provide habeas litigants with the
opportunity to amend their mixed petitions by striking
unexhausted claims.”); Jarvis v. Nelson, 440 F.2d 13, 14 (9th
Cir. 1971) (per curiam) (“[A] petition for habeas corpus
should not be dismissed without leave to amend unless it
appears that no tenable claim for relief can be pleaded were
such leave granted.”); see also Rhines v. Weber, 544 U.S.
269, 278 (2005) (concluding that even where a stay was
inappropriate, at a minimum the district court should allow a
petitioner to delete the unexhausted claims and proceed with
the exhausted claims only).
Sherwood is distinguishable, and the district court erred
as a matter of law by dismissing Henderson’s petition.
Sherwood stands for the proposition that a district court may
not adjudicate a federal habeas petition while a petitioner’s
direct state appeal is pending. 716 F.2d at 634 (“When, as in
the present case, an appeal of a state criminal conviction is
pending, a would-be habeas corpus petitioner must await the
outcome of his appeal before his state remedies are exhausted
. . . .”). Although district courts cannot adjudicate mixed
petitions, Sherwood does not undermine the important
precedent requiring district courts first to grant leave to
amend and, if requested, to consider a petitioner’s eligibility
for a stay under Rhines, 544 U.S. at 275–77 (stay of entire
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petition), or under Kelly, 315 F.3d at 1070–71 (stay of
exhausted claims only). The district court erred by failing to
allow Henderson leave to amend her petition before
dismissal, and by refusing to address Henderson’s request for
relief under Rhines or Kelly.
Moreover, the parties agree that the California courts have
now considered and rejected all of Henderson’s habeas
claims. Therefore, her federal habeas petition contains only
exhausted claims and should be allowed to proceed.
REVERSED AND REMANDED.