(HC) Jeffries v. Clark ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW JEFFRIES, No. 2:20-cv-2414 KJN P 12 Petitioner, 13 v. ORDER 14 KEN CLARK, 15 Respondent. 16 17 Petitioner is a state prisoner, proceeding pro se, with a petition for writ of habeas corpus 18 under 28 U.S.C. § 2254. Petitioner challenges his 2013 conviction. On December 21, 2020, 19 petitioner filed a motion for stay and abeyance under Rhines v. Weber, 544 U.S. 269, 276 (2005). 20 Petitioner concedes that claims six and seven are unexhausted, but argues that he has 21 demonstrated his diligence by (a) filing a petition in the superior court on December 20, 2019, 22 which was denied on June 23, 2020; and (b) filing a habeas petition in the California appellate 23 court on September 21, 2020, which is currently pending. 24 Stay and Abeyance Under Rhines 25 A district court may, in limited circumstances, stay a mixed petition pending exhaustion of 26 unexhausted claims if: (1) “the petitioner had good cause for his failure to exhaust;” (2) “his 27 unexhausted claims are potentially meritorious;” and (3) “there is no indication that the petitioner 28 engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278. Each of these three 1 conditions must be satisfied because, as the court emphasized, “even if a petitioner had good 2 cause for that failure, the district court would abuse its discretion if it were to grant him a stay 3 when his unexhausted claims are plainly meritless.” Rhines, 544 U.S. at 277. 4 “The case law concerning what constitutes ‘good cause’ under Rhines has not been 5 developed in great detail.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017) (citing Blake v. 6 Baker, 745 F.3d 977, 980 (9th Cir. 2014) (“There is little authority on what constitutes good 7 cause to excuse a petitioner’s failure to exhaust.”)) The Ninth Circuit has indicated that the 8 showing required for “good cause” is less than “extraordinary circumstances.” See Jackson v. 9 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005) (“Although examination into Jackson's failure to 10 exhaust was proper, and indeed, necessary, under Rhines, we hold that the application of an 11 ‘extraordinary circumstances’ standard does not comport with the ‘good cause’ standard 12 prescribed by Rhines.”) 13 The Ninth Circuit has also provided that “good cause turns on whether the petitioner can 14 set forth a reasonable excuse, supported by sufficient evidence, to justify that failure.” Blake, 745 15 F.3d at 982, citing Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). “While a bald assertion 16 cannot amount to a showing of good cause, a reasonable excuse, supported by evidence to justify 17 a petitioner's failure to exhaust, will.” Blake, 745 F.3d at 982; contrast with Wooten v. Kirkland, 18 540 F.3d 1019, 1024 (9th Cir. 2008) (rejecting good cause showing where a petitioner indicated 19 he was “under the impression” that counsel had presented all claims presented in the state 20 appellate court to the state supreme court, reasoning that “[t]o accept that a petitioner's 21 ‘impression’ that a claim had been included in an appellate brief constitutes ‘good cause’ would 22 render stay-and-obey [sic] orders routine.”) 23 Discussion 24 In his motion, petitioner relies on the fact that he filed state court collateral challenges to 25 justify good cause and demonstrate petitioner’s diligence. However, as the court in Rhines 26 explained, petitioner must address all three prongs identified therein. Petitioner has failed to do 27 so. Indeed, in the order denying one habeas petition, the Sacramento County Superior Court 28 found that petitioner failed to demonstrate that the alleged newly-discovered evidence, David 1 | Thompson’s declaration dated in 2015, about four years before the petition was filed, “was 2 || presented without substantial delay.” (ECF No. 1 at 10.) In the instant motion, petitioner fails to: 3 | demonstrate good cause for his failure to earlier exhaust his two unexhausted claims; explain his 4 | delay in doing so, demonstrating he was not engaged in intentional dilatory litigation tactics; and 5 || address the potential merit of such claims. Therefore, petitioner’s motion must be denied. 6 | However, the motion is denied without prejudice to petitioner renewing his motion upon a proper 7 | showing. 8 In accordance with the above, IT IS HEREBY ORDERED that petitioner’s motion for 9 | stay (ECF No. 7) is denied without prejudice. 10 | Dated: January 27, 2021 Aectl Aharon 12 KENDALL J. NE feft2414.sty UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28