(DP) McWhorter v. Davis ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD ALLEN McWHORTER, Case No. 1:20-cv-00215-JLT 12 Petitioner, DEATH PENALTY CASE 13 v. ORDER REGARDING MOTION FOR RHINES STAY AND ABEYANCE 14 CHANCE ANDES, Acting Warden of San Quentin Rehabilitation Center, 15 Respondent. 16 17 I. INTRODUCTION 18 Petitioner has filed a motion to stay the case pursuant to Rhines v. Weber, 544 U.S. 269 19 (2005), to allow state court exhaustion of claims in the 28 U.S.C. § 2254 amended petition for 20 writ of habeas corpus filed May 15, 2023 (hereinafter the “Federal Amended Petition”). (Doc. 21 75.) Respondent Warden opposes the motion. (Doc. 76). 22 The Court, having previously found the motion suitable to disposition on the papers (Doc. 23 74 at 2), and having now considered the parties’ filings, the record in this case, and the 24 applicable legal authority, finds that: (i) the Federal Amended Petition contains unexhausted 25 claims, (ii) Petitioner has satisfied the requirements for the granting of a stay pursuant to the 26 Rhines standard, and (iii) this federal habeas action shall be stayed and held in abeyance of 27 exhaustion proceedings in state court. The reasons for the Court’s rulings are discussed below. 1 II. BACKGROUND 2 Petitioner was convicted of two first degree murders and first degree residential robbery, 3 with the special circumstances of multiple-murder and robbery-murder found true, and sentenced 4 to death. People v. Richard Allen McWhorter, Kern County Superior Court Case No. 65352A. 5 The California Supreme Court affirmed Petitioner’s judgment of conviction and sentence on 6 automatic appeal. People v. McWhorter, 47 Cal. 4th 318 (2009), as modified (Oct. 14, 2009). 7 The United States Supreme Court denied certiorari. Richard Allen McWhorter v. California, 562 8 U.S. 844 (Oct. 4, 2010). 9 Petitioner filed a state petition for writ of habeas corpus. The state Supreme Court granted 10 Petitioner’s request that consideration of the habeas corpus petition be deferred pending filing of 11 an amended habeas petition. After filing the amended habeas corpus petition (hereinafter “State 12 Amended Petition”) (Doc. 18-4), the California Supreme Court summarily denied Petitioner’s 13 State Amended Petition. (Doc. 18-20.) 14 On February 11, 2020, Petitioner began this federal habeas proceeding pursuant to 28 15 U.S.C. § 2254. (Docs. 1, 2.) Soon thereafter, Respondent lodged the record. (Docs. 16, 17, 18.) 16 On October 7, 2020, the Court granted Petitioner’s motion to equitably toll the limitations 17 deadline under 28 U.S.C. § 2244 from January 22, 2021, to and including March 31, 2021, due to 18 delay in the appointment of federal habeas counsel. (Doc. 22.) The Court granted further 19 equitable tolling of the 28 U.S.C. § 2244 deadline through filing of the Federal Amended Petition, 20 on grounds that extraordinary circumstances raised by the COVID-19 pandemic impeded 21 investigation, development, and presentation of federal claims. (Docs. 28, 36, 42, 46, 72.) 22 On October 22, 2021, Petitioner filed a 297-page federal (protective) petition pursuant to 23 28 U.S.C. § 2254 stating twenty-two record-based claims. (Doc. 34.) On May 15, 2023, 24 Petitioner filed the operative Federal Amended Petition totaling 339 pages and stating 27 claims 25 including subclaims. (Doc. 63.) 26 III. DISCUSSION 27 A. The Federal Amended Petition is a Mixed Petition 1 fully exhausted claims 1-4, 6-16, 18-21, 23, and 27, as well as the following unexhausted claims: 2 • Claims 5: Alleging incompetence during trial and continuing to the present time. 3 (Doc. 63 at 125-31.) 4 • Claim 17: Alleging execution ineligibility due to mental impairment. (Id. at 278-95.) 5 • Claim 22: Alleging denial of equal protection, due process, and a reliable conviction 6 and sentence due to limited and disparate state funding and resources available to 7 Petitioner’s appointed private appellate and habeas counsel (as versus capital 8 defendants with appointed public appellate and habeas counsel), precluding 9 development of evidence including neuropsychological evaluation. (Id. at 323-26.) 10 • Claims 24: Alleging ineffective assistance by state appellate counsel, including 11 failure to review, correct, and perfect the record and fully develop and present claims. 12 (Id. at 330-32.) 13 • Claim 25: Alleging ineffective assistance by state habeas counsel, including failures 14 to review, correct, and perfect the record and fully develop and present claims 15 including the unexhausted claims. (Id. at 332-36.) 16 (Doc. 73 at 1 n.1; Doc. 74 at 2;1 see also E.D. Cal. Local Rule 143.) Thus, the Court finds the 17 Federal Amended Petition is a mixed petition subject to dismissal. See Rose v. Lundy, 455 U.S. 18 509, 522 (1982) (“In sum, because a total exhaustion rule promotes comity and does not 19 unreasonably impair the prisoner’s right to relief, we hold that a district court must dismiss 20 habeas petitions containing both unexhausted and exhausted claims.”). 21 A state prisoner must exhaust his or her state court remedies before a federal court may 22 consider granting habeas corpus relief. Id.; see also 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. 23 Boerckel, 526 U.S. 838, 842 (1999) (“Before a federal court may grant habeas relief to a state 24 prisoner, the prisoner must exhaust his remedies in state court.”). A petitioner satisfies the 25 exhaustion requirement by providing the highest state court with a full and fair opportunity to 26 consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 27 1 The parties dispute the exhaustion status of claim 26, which alleges actual innocence based in part upon unspecified 1 276 (1971) (“We emphasize that the federal claim must be fairly presented to the state courts.”); 2 Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985) (same). If exhaustion is to be waived, it 3 must be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). No such waiver by 4 Respondent is before the Court. 5 Federal habeas review under 28 U.S.C. § 2254(d)(1) is limited to the record that was 6 before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 7 180-81 (2011) (concluding the district court erred in considering evidence introduced for first 8 time in federal court); Shinn v. Ramirez, 596 U.S. 366, 378 (2022) (stating same and citing to 9 Pinholster, 563 U.S. at 180). A district court is permitted to stay a mixed petition to allow a 10 petitioner to exhaust his claims in state court without running afoul of the one-year statute of 11 limitations period to file for federal habeas review imposed by the Antiterrorism and Effective 12 Death Penalty Act of 1996. 28 U.S.C. § 2244(d)(1). 13 B. Rhines Stay and Abeyance 14 A district court may stay a mixed petition if: 1) the petitioner has good cause for his failure 15 to exhaust any one of the unexhausted claims, 2) any one of the unexhausted claims is potentially 16 meritorious, and 3) there is no indication that the petitioner intentionally engaged in dilatory 17 tactics. Rhines, 544 U.S. at 277-78; see also Horning v. Martel, No. 2:10-cv-1932 JAM GGH 18 DP, 2011 WL 5921662, at **2-3 (E.D. Cal. Nov. 28, 2011), report and recommendation adopted, 19 2012 WL 163784 (Jan. 19, 2012) (“One claim requiring a stay acts as an umbrella for all 20 claims.”); Jackson v. CSP-Solano, No. 2:14-cv-2268 MCE DB P, 2017 WL 404583, at *5 (E.D. 21 Cal. Jan. 30, 2017), report and recommendation adopted sub nom. Jackson v. CSP-Solano, 22 Warden, No. 2:14-cv-2268 MCE DB P, 2017 WL 896325 (E.D. Cal. Mar. 6, 2017) (“To obtain a 23 stay of these proceedings, petitioner need only show he had valid reason for failing to raise one of 24 his claims[.]”); Bunyard v. Davis, No. 2:15-cv-01790 WBS AC DP, 2018 WL 6065389, at *2 25 (E.D. Cal. Nov. 20, 2018), report and recommendation adopted, No. 2:15-cv-1790 WBS AC, 26 2019 WL 134564 (E.D. Cal. Jan. 7, 2019) (citing Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 27 2017)) (a showing of good cause for a stay to permit exhaustion of any one potentially 1 The Supreme Court has not articulated with precision what constitutes “good cause” for 2 purposes of granting a stay under Rhines. In Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), the 3 Supreme Court stated that a “petitioner’s reasonable confusion about whether a state filing would 4 be timely will ordinarily constitute ‘good cause’ for him to file in federal court” without 5 exhausting state remedies first. The Ninth Circuit has clarified that “good cause” for failure to 6 exhaust does not require “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 7 (9th Cir. 2005). Nonetheless, the good cause requirement should be interpreted in light of the 8 Supreme Court’s admonition that stays be granted only in “limited circumstances” so as not to 9 undermine AEDPA’s twin goals of reducing delays in the execution of criminal sentences and 10 streamlining federal habeas proceedings by increasing a petitioner’s incentive to exhaust all 11 claims in state court. Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008). 12 For purposes of a stay under Rhines, whether the petitioner has good cause for his failure to 13 exhaust “turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient 14 evidence, to justify that failure.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014) (citing Pace, 15 544 U.S. at 416); see also Jackson, 425 F.3d at 661-62 (remanding for consideration of the three 16 Rhines factors). Also, “good cause under Rhines, when based on [ineffective assistance of 17 counsel], cannot be any more demanding than a showing of cause under Martinez [v. Ryan, 566 18 U.S. 1 (2012)], to excuse state procedural default.”2 Blake, 745 F.3d at 983-84. The Ninth 19 Circuit has observed that good cause has been found where a petitioner meets the standard in 20 Martinez. Dixon, 847 F.3d at 720-21. 21 The merit inquiry under Rhines turns on whether the petitioner has presented a colorable 22 claim, not whether he is likely to prevail. See Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 23 2011). As noted, a federal habeas petitioner need only show that one of his unexhausted claims is 24 not “plainly meritless” in order to obtain a stay under Rhines. 544 U.S. at 277; see also Dixon, 25 847 F.3d at 722. 26 27 2 The Supreme Court in Martinez held that inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial where the claim has some merit. 566 U.S. at 9. 1 The decision whether to grant a Rhines stay is subject to the discretion of the district court. 2 Rhines, 544 U.S. at 276; see also Jackson, 425 F.3d at 661 (when the three Rhines factors are 3 satisfied, however, “it likely would be an abuse of discretion for a district court to deny a 4 stay[.]”). A stay granted pursuant to Rhines may not be indefinite; reasonable time limits must be 5 imposed on a petitioner’s return to state court. 544 U.S. at 277-78. 6 1. Claim 22 7 As discussed above, Petitioner need only demonstrate that he has good cause for failing to 8 exhaust one potentially meritorious claim. See Rhines, 544 U.S. at 277; Dixon, 847 F.3d at 722; 9 Jackson, 2017 WL 404583, at *5. Here, Petitioner focuses on claim 22 as the basis for Rhines 10 relief. (Docs. 75, 77.) 11 a. Good cause for Failure to Exhaust 12 Petitioner argues his failure to exhaust claim 22 should be excused because that claim 13 could not have been raised prior to completion of his state habeas proceedings. He argues that 14 claim 22, alleging denial of federal rights based upon the limited and disparate state funding and 15 resources available to his state appointed private appellate and habeas counsel, was not ripe to be 16 raised until January 22, 2020, when the state supreme court denied his State Amended Petition 17 which included a request for additional state habeas funding. (Doc. 75 at 5; Doc. 63 at 323-26.) 18 Respondent, in his opposition to the motion, argues that claim 22 could have been raised 19 prior to conclusion of the state habeas proceedings. He argues that state habeas counsel would 20 have known of the alleged funding and resource limitations and disparities, as well as the need to 21 develop and present all of Petitioner’s constitutional claims. (Doc. 76 at 6-8.) 22 Alternatively, Petitioner argues that his failure to exhaust claim 22 should be excused 23 because his state habeas counsel was ineffective in failing to raise it, as alleged in unexhausted 24 claim 25.3 (Doc. 63 at 332-33, citing In re Clark, 5 Cal. 4th 750, 780; Strickland v. Washington, 25 466 U.S. 668 (1984); Wiggins v. Smith, 539 U.S. 510 (2003) (applying the Strickland standard at 26 27 3 Claim 25 appears to allege ineffective assistance of state habeas counsel both as a basis to show “cause” under Martinez (i.e. an equitable claim), and as a basis to show a free standing violation of federal rights (i.e. a constitutional claim), the latter being unexhausted. (See Doc. 63 at 333, citing Strickland, 466 U.S. at 668; Martinez, 1 trial); Evitts v. Lucey, 469 U.S. 387 (1985) (applying the Strickland standard on first appeal as of 2 right). He argues that California Supreme Court policies limiting funding and resources available 3 to his appointed private appellate and habeas counsel as alleged in claim 22, kept counsel from 4 fully reviewing, correcting, and perfecting the record and developing and presenting evidence and 5 claims. (See Doc. 63 at 323-25, 330-32; Doc. 75 at 6, citing Blake, 745 F. 3d at 983; Riner v. 6 Crawford, 415 F. Supp. 2d 1207, 1210-11 (D. Nev. 2006) (concluding that ineffective assistance 7 by state habeas counsel could provide good cause under Rhines); Hagins v. Gay, 2007 WL 8 148951, at **4-5 (W.D. Wash., Jan. 5, 2007) (same).) For example, he argues that in his case, 9 because of state habeas counsel’s deficient conduct, many unspecified possible leads were left 10 untouched and additional experts necessary for a complete neuropsychological evaluation were 11 unavailable. (See Doc. 63 at 323-25.) 12 Respondent argues that Petitioner fails to make a sufficient evidentiary proffer of 13 ineffective assistance of counsel. He argues that in any event, there is no federal right to effective 14 assistance by state habeas counsel. (See Doc. 76 at 10 citing Pennsylvania v. Finley, 481 U.S. 15 551, 555 (1987); Coleman v. Thompson, 501 U.S. 722, 752 (1991) (same); 28 U.S.C. § 2254(i) 16 (“The ineffectiveness or incompetence of counsel during Federal or State collateral post- 17 conviction proceedings shall not be a ground for relief in a proceeding arising under section 18 2254.”).) He argues that state habeas counsel reasonably investigated and presented claims and 19 was not chargeable with raising every non-frivolous issue (Doc. 76 at 9); that Petitioner’s failure 20 to provide a declaration by state habeas counsel in support of the instant motion implies that such 21 counsel acted tactically, rather than ineffectively; and that in any event, Petitioner fails to point to 22 specific facts showing prejudicially deficient conduct by state habeas counsel under the standard 23 in Strickland and Blake. (See Doc. 76 at 6, citing Blake, 745 F.3d at 982.) 24 The Court finds that Petitioner’s argument that claim 22 could not have been raised prior to 25 denial of the State Amended Petition comports with common sense, finds some support in the 26 state record, and is sufficient excuse under Blake. (See Doc. 75 at 5; Doc. 63 at 323; Doc. 18-4 at 27 29, 359, 372; Doc. 18-20.) Though claim 22 may have been incipient upon state appointment of 1 funding. Indeed, the Court in a separate case and on similar facts found such an argument to be 2 sufficient as Rhines good cause. See e.g., Bunyard, 2018 WL 6065389, at **2-3 (citing Blake, 3 745 F.3d at 983) (finding Rhines good cause based upon a colorable constitutional claim that 4 California provides appointed private capital post-conviction counsel with limited, disparate, and 5 objectively inadequate funding and resources in comparison with appointed public agency capital 6 post-conviction counsel). 7 Petitioner’s further argument, that his failure to exhaust claim 22 is excused by ineffective 8 assistance of state habeas counsel, also finds some support in the state record and is sufficient 9 excuse under Blake.4 (See Doc. 75 at 6; Doc. 63 at 333-35; see also Blake, 745 F.3d at 983-84 & 10 n.7 (the Rhines standard for ineffective assistance of counsel based “cause” is not any more 11 demanding than the “cause” standard articulated in Martinez). For example, state habeas counsel 12 appears chargeable with knowledge of the state’s two-tiered system of funding private versus 13 public capital habeas counsel. (See Doc. 75 at 6, citing Jones v. Chappell, 31 F. Supp.3d 1050, 14 1057-1058 (C.D. Cal. 2014), reversed by Jones v. Davis, 806 F.3d 538 (9th Cir. 2015) (describing 15 California’s two-tiered system of public agency and private appointments, and funding problems 16 facing private appointed counsel in California death penalty cases); see also Doc. 76 at 6.) State 17 habeas counsel alleged in the State Amended Petition that his claim development was limited by 18 lack of funding, and requested therein that he be provided sufficient funds and time to secure 19 additional investigative and expert assistance as necessary to prove the facts alleged in that 20 Petition. (Doc. 18-4 at 29, 33, 372). Even so, state habeas counsel failed to exhaust the claim 22 21 allegations. 22 The Court observes that Martinez and Blake involved state habeas counsel’s ineffective 23 failure to present a substantial claim of trial counsel ineffective assistance. Claim 22 is not such a 24 claim. Still, claim 22 may relate to undeveloped allegations of ineffective assistance by trial 25 counsel included in unexhausted claim 5. (Doc. 63 at 125-27); see also Sadowski v. Grounds, 26 358 F. Supp. 3d 1064, 1070 (C.D. Cal. 2019) (citing Blake, 745 F.3d at 983-84) (”[A] petitioner 27 4 The Court need not and does not consider whether alleged ineffective assistance by state appellate counsel excuses 1 can show good cause under Rhines for a failure to exhaust a claim of ineffective assistance of trial 2 counsel by satisfying the good cause standard announced in Martinez[.]”). For example, claim 22 3 alleges prejudice raised by failure to develop constitutional errors at trial, including due to state 4 habeas counsel’s lack of funding and resources to complete a neuropsychological evaluation of 5 Petitioner. (Doc. 63 at 323.) Relatedly, unexhausted claim 5 includes allegations that trial 6 counsel was prejudicially deficient by failing fully to develop social history and mental state 7 evidence bearing upon issues of guilt, penalty, and competency. (Doc. 63 at 125-31; see also 8 Doc. 18-4 at 296-329, citing State Amended Petition Exhibit 54 at 606, State Amended Petition 9 Exhibit 58 at 635, State Amended Petition Exhibit 59 at 655-70, State Amended Petition Exhibit 10 63 at 745, State Amended Petition Exhibit 64 at 752, and State Amended Petition Exhibit 65 at 11 757)); Bunyard, 2018 WL 6065389, at *6 (citing Pate v. Robinson, 383 U.S. 375 (1966); Drope 12 v. Missouri, 420 U.S. 162, 171 (1975) (it is well-established that trial while mentally incompetent 13 violates a defendant’s constitutional rights). Notably, the Court in a separate case on similar albeit 14 better developed facts, found Rhines good cause based upon state habeas counsel’s alleged 15 ineffective failure to present the same constitutional claim asserted in claim 22. Bunyard, 2018 16 WL 6065389, at *3 (citing Blake, 745 F.3d at 983). 17 Furthermore, Petitioner need not support his request for Rhines stay and abeyance with a 18 declaration by state habeas counsel. See Lund v. Locatelli, No. 2:21-cv-01831 KJM DB P, 2022 19 WL 3416996, at *3 (E.D. Cal. Aug. 16, 2022) (citing Tobin v. Davis, No. 1:18-cv-01375-NONE- 20 SAB, 2021 WL 5359680, *6 (E.D. Cal. Nov. 17, 2021)) (post-conviction counsel’s failure to 21 exhaust claims is not presumed to be a strategic decision simply because petitioner did not 22 include a declaration from post-conviction counsel in support of Rhines relief); Davis v. Davis, 23 No. C-13-0408 EMC, 2015 WL 4512309, at *4 (N.D. Cal. July 24, 2015) (“The absence of a 24 declaration by, or testimony from state habeas counsel attesting to the lack of post-conviction 25 tactics in failing to raise the noted unexhausted [c]laims, is not alone suggestive of a reasonable 26 post-conviction strategy.”). The Court is unpersuaded by Respondent’s argument otherwise. 27 (Doc. 76, at 5, 10-12, citing Wooten, 540 F.3d at 1024 n.2, McWhorter, 47 Cal. 4th at 339.) Nor 1 Blake’s equitable good cause analysis is limited or impacted by the absence of a federal right to 2 state habeas counsel. 3 Petitioner need not prove ineffective assistance by state habeas counsel to satisfy the 4 equitable “good cause” prong of the standard in Rhines. Harris v. Davis, No. 1:16-cv-01572- 5 DAD, 2020 WL 3640069, at *3 (E.D. Cal. Jul. 6, 2020); see also Ervine v. Warden, San Quentin 6 State Prison, No. 2:15-cv-1916 TLN DB, 2018 WL 372754, at *3 (E.D. Cal. Jan. 10, 2018), 7 report and recommendation adopted, No. 2:15-cv-01916-TLN-DB, 2018 WL 1173959 (E.D. Cal. 8 Mar. 6, 2018) (same). Under Blake, a petitioner need only provide a “concrete and reasonable 9 excuse, supported by evidence” that his state appointed counsel failed to discover, investigate, 10 and present to the state courts the new claim. 745 F.3d at 983-84; see also Martinez, 566 U.S. at 11 14 (petitioner must demonstrate the underlying ineffective assistance of trial counsel claim has 12 some merit). 13 Petitioner’s noted excuses for failing to exhaust are each specific and supported by some 14 evidence. Petitioner has done more than make a “bare allegation” of good cause. Blake, 745 15 F.3d at 983; see also Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000) (where good cause turns on 16 the ineffective assistance of counsel, “[t]he relevant question is not whether counsel’s choices 17 were strategic, but whether they were reasonable.”); Guideline 10.7, American Bar Association 18 Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 19 HOFSTRA L. REV. 913, 1015-27 (2003) (counsel handling state collateral proceedings must 20 undertake a thorough investigation into the facts surrounding all phases of the case); Lund, 2022 21 WL 3416996, at *3 (“respondent’s mere surmise” that post-conviction counsel must have been 22 tactically motivated not a basis to find a reasonable post-conviction strategy); cf. Barrera v. 23 Muniz, No. 2:14-cv-2260 JAM DAD P, 2015 WL 4488235, at *3 (E.D. Cal. July 23, 2015), 24 report and recommendation adopted, 2015 WL 6736813 (E.D. Cal. Nov. 4, 2015) (no good cause 25 found where petitioner submitted no evidence in support of ineffective assistance of counsel); 26 Lisea v. Sherman, No. 2:14-cv-1766 CKD P, 2014 WL 4418632, at *3 (E.D. Cal. Sept. 8, 2014) 27 (same). As this Court has observed: 1 showing. See [Cruz, post] (petitioner’s showing that current counsel uncovered evidence of jury misconduct that could have been 2 uncovered, and raised, by state habeas counsel is sufficient showing of ineffective assistance of counsel for Rhines stay). 3 4 Ervine, 2018 WL 372754, at *3; see also Blake, 745 F.3d at 982 (“legitimate reason” for the 5 failure to exhaust satisfies the equitable “good cause” element of the Rhines test). 6 b. Potentially Meritorious Claim 7 As discussed above, Petitioner alleges in claim 22 that his federal rights to equal 8 protection, due process, and a reliable trial were violated by the limited and disparate funding and 9 resources available to his state appointed private appellate and habeas counsel. He argues these 10 allegations are at least colorable and thus potentially meritorious and not “plainly meritless.” 11 Particularly, Petitioner argues the state’s two-tiered system for appointing capital appellate 12 and habeas counsel for indigent defendants violated his fundamental federal rights to counsel and 13 access to the courts, including by arbitrarily and unfairly preventing his private counsel from 14 accessing the appropriate level of funding and resources otherwise available to public agency 15 counsel representing similarly situated capital defendants. He argues these state imposed funding 16 and resource disparities did not further any apparent state purpose or policy. (Doc. 63 at 323-26; 17 Doc. 75 at 6 citing Jones, 31 F.Supp.3d at 1057-58 (describing funding problems facing private 18 appointed counsel in death penalty cases).) He argues that because of these constitutional 19 deprivations, his state appellate and habeas counsel performed ineffectively, including by leaving 20 untouched many possible leads and failing fully to develop mental state evidence. (Doc. 63 at 21 325.) Respondent again counters that claim 22 is merely conclusory, unsupported by evidence. 22 (Doc. 76 at 11-13 citing Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (conclusory 23 allegations are insufficient to provide a basis for granting habeas relief).) 24 In determining whether a claim is “plainly meritless,” principles of comity and federalism 25 demand that the federal court refrain from ruling on the merits of the claim unless “it is perfectly 26 clear that the petitioner has no hope of prevailing.” Dixon, 847 F.3d at 722 (quoting Cassett v. 27 Stewart, 406 F.3d 614, 624 (9th Cir. 2005)). “A contrary rule would deprive state courts of the opportunity to address a colorable federal claim in the first instance and grant relief if they 1 believe it is warranted.” Id. (quoting Cassett, 406 F.3d at 624) (citing Lundy, 455 U.S. at 515). 2 Thus, the merit inquiry under Rhines turns on whether a petitioner has presented one colorable 3 claim, not whether he is likely to prevail on that claim. See Gonzalez, 667 F.3d at 980; Dixon, 4 847 F.3d at 722. 5 The Court’s preliminary review suggests that claim 22 is colorable and not hopeless. See 6 Dixon, 847 F.3d at 722; Cruz v. Mitchell, No. 13-cv-2792-JST, 2015 WL 78779, at *3 (N.D. Cal. 7 Jan. 5, 2015) (petitioner’s unexhausted claims are potentially meritorious where they are not 8 vague, conclusory, or patently frivolous, but rather cognizable claims supported by authority, 9 evidence, and offers of proof); cf. Roybal v. Davis, 148 F. Supp. 3d 958, 1104 (S.D. Cal. 2015) 10 (rejecting on the merits petitioner’s claim that California Supreme Court policies 11 unconstitutionally limited fees for the investigation and preparation of the state habeas petition by 12 appointed counsel, where the petitioner failed to offer (1) any authority that the ABA Guidelines’ 13 general disapproval of a capital case fee structure such as California’s is sufficient to state a claim 14 of constitutional error, and (2) any evidence such policies prejudiced his ability to prepare and file 15 a state habeas petition, complete his state habeas proceedings, or violated his federal 16 constitutional rights). 17 Petitioner, in claim 22, points to California Supreme Court Policies and Guidelines placing 18 limitations upon appointed private appellate and habeas counsel’s fees and expenses; and posits 19 that such limitations were not imposed upon state appointed public agency appellate and habeas 20 counsel.5 (Doc. 63 at 323-26, citing Supreme Court Policies Regarding Cases Arising From 21 Judgments of Death, Policy 3, standards 2-2.1 to 2-2.4; Payment Guidelines for Appointed 22 Counsel Representing Indigent Criminal Appellants in the California Supreme Court, section II 23 (I)(3)(i), (ii), III.C.7.a, b.6.) 24 Petitioner alleges the state’s process for appointing private versus public appellate and 25 habeas counsel is entirely arbitrary. (Doc. 63 at 323-26.) As discussed above, Petitioner asserts 26 27 5 While the state’s process for appointing counsel to indigent capital defendants in post-conviction proceedings changed in 2016 with the passage of Proposition 66, nothing before the Court suggests Petitioner’s case was impacted thereby. (See Doc. 18-20, wherein the state supreme court retained and ruled on Petitioner’s Amended 1 that his underfunded state habeas counsel failed to fully investigate “many possible leads” and 2 failed to consult with “additional experts for a complete neuropsychological evaluation[.]” (Doc. 3 63 at 325-26; see also id. at 332-35 (alleging in unexhausted claim 25 that state habeas counsel 4 provided ineffective assistance); id. at 125-31 (alleging in unexhausted claim 5 that trial counsel 5 provided ineffective assistance by failing to fully develop and present substantive incompetency); 6 id. at 278-95 (alleging in unexhausted claim 17 that he is mentally impaired and thus ineligible 7 for execution).6) Relatedly, the record includes state habeas counsel’s assertions that his 8 investigation and development of claims for relief from conviction and sentence were impeded by 9 a lack of funds, and that additional investigative and expert assistance was necessary including as 10 to Petitioner’s mental state and development of related claims. (Doc. 18-4 at 29, 33, 372.) 11 These allegations and supporting proffer suggest a colorable equal protection claim raised 12 by the state’s intentional and arbitrary limitation of funding and resources visited upon Petitioner 13 and other indigent capital defendants represented by appointed private counsel, but not upon 14 capital defendants represented by public agency counsel. For example, Petitioner’s allegations 15 and proffer suggest the limited and disparate funding and resources available to appointed private 16 state appellate and habeas counsel is unsupported by any apparent state rational or policy point. 17 Relatedly, the Court observes that in California, in addition to qualified private counsel, the State 18 Public Defender, the California Appellate Project, and the Habeas Corpus Resource Center are 19 qualified for appointment in capital post-conviction proceedings. See California Rules of Court, 20 Rules 8.605(g), 8.652(g). The record before the Court does not shed light on the state’s 21 methodology for choosing among qualified counsel. 22 Where a classification fails to reflect an underlying substantive policy, it is arbitrary. City 23 of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 471 n.23 (1985); see also Nothnagel 24 v. Allenby, No. C 12-5976 CW (PR), 2016 WL 393164, at *6 (N.D. Cal. Feb. 2, 2016) (citing 25 City of Cleburne, 473 U.S. at 439) (“The equal protection clause prohibits the arbitrary and 26 27 6 The Court observes that claim 17 is premature and subject to dismissal on that basis, pending setting of an execution date. Burton v. Stewart, 549 U.S. 147, 154-55 (2007); Stanley v. Davis, No. C-07-4727 EMC, 2015 WL 435077, at *5 (N.D. Cal. Feb. 2, 2015) (district courts in the Ninth Circuit have dismissed execution ineligibility 1 unequal application of state law, essentially a direction that all persons similarly situated should 2 be treated alike.”). 3 These allegations and supporting proffer also suggest constitutional harm. As discussed 4 above, Petitioner alleges that the noted funding and resource limitations and disparities prevented 5 his counsel’s full development and presentation of claims for review by the state supreme court. 6 See City of Cleburne, 473 U.S. at 439 (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)) (“The 7 Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any 8 person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that 9 all persons similarly situated should be treated alike.”); cf. Cleveland v. Broomfield, No. CV 05- 10 3822 SVW, 2021 WL 3476151, at *10 (C.D. Cal. Mar. 11, 2021) (citing Lee v. City of Los 11 Angeles, 250 F.3d 668, 686 (9th Cir. 2001)) (equal protection claim failed where capital petitioner 12 fails to allege facts that the state purposefully treated him differently than similarly situated 13 capital defendants without any rational basis for the disparate treatment). 14 Petitioner’s allegations and supporting proffer also suggest a colorable due process claim 15 that he was denied a fundamentally fair trial and reliable verdict. See Hicks v. Oklahoma, 447 16 U.S. 343, 346 (1980) (due process principles are violated where a petitioner is denied a 17 fundamentally fair trial); Coddington v. Martel, No. 2:01-cv-01290 KJM CKD, 2023 WL 18 3229948, at *26 (E.D. Cal. May 3, 2023) (citing In re Murchison, 349 U.S. 133, 136 (1955)) (a 19 “fair trial in a fair tribunal is a basic requirement of due process[.]”). 20 The Supreme Court has recognized due process and equal protection rights to an appeal. 21 Hicks, 447 U.S. at 346-47. Under the Sixth and Fourteenth Amendments to the United States 22 Constitution, a criminal defendant has the right to the effective assistance of counsel. Strickland, 23 466 U.S. at 686. This right extends not only to effective assistance at trial, but also to effective 24 assistance of counsel on state appeals as of right. Lucey, 469 U.S. at 394-397 (a criminal 25 defendant has the right to effective assistance of counsel at trial and on state appeals of right). 26 Additionally, Petitioner’s allegations may suggest denial of procedural due process based 27 upon a state-created liberty interest in petitioning for habeas corpus. See Redd v. Guerrero, 84 1 Peterson, 809 F.3d 1059, 1065 (9th Cir. 2015) (California petitioner has a constitutionally 2 protected liberty interest in petitioning for habeas corpus)). Relatedly, Petitioner’s allegations 3 may suggest denial of a state created entitlement to the funding and resources available to 4 similarly situated capital defendants represented by appointed public counsel - also implicating 5 his procedural due process rights. See, e.g., Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 6 2000) (citing Hicks, 447 U.S. at 346) (“A State violates a criminal defendant’s due process right 7 to fundamental fairness if it arbitrarily deprives the defendant of a state law entitlement.”). 8 Notably, the Court in a separate case on similar albeit better developed facts, found 9 allegations such as those advanced in claim 22 to be potentially meritorious for purposes of 10 Rhines stay and abeyance. See Bunyard, 2018 WL 6065389, at **2-3 (granting Rhines relief 11 based upon state post-conviction counsel’s prejudicially deficient failure to develop and present a 12 colorable claim premised upon “California’s system of appointing private post-conviction 13 counsel, and provision of funding and resources to private counsel that are both objectively 14 inadequate and disparate in comparison to the resources available to death-sentenced inmates 15 represented by public agencies.”); see also SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 16 662, 679 (9th Cir. 2002) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)) (a 17 § 2254 petitioner, who does not allege membership in a class or group, may bring a “class of one” 18 equal protection challenge when she alleges that she has “been intentionally treated differently 19 from others similarly situated and that there is no rational basis for the difference in treatment.”); 20 Vaught v. Allison, No. 3:21-cv-0408-CAB-AGS, 2021 WL 4428965, at *6 (S.D. Cal. Sept. 24, 21 2021) (noting that class of one equal protection claims are cognizable for § 2254 relief); cf. Catlin 22 v. Davis, No. 1:07-cv-01466 LJO SAB, 2019 WL 6885017, at *211 (E.D. Cal. Dec. 17, 2019) 23 (rejecting on the merits, as unsupported and unpersuasive, claimed ineffective assistance of state 24 post-conviction counsel based upon California’s system for appointment and funding of private 25 counsel). 26 Finally, to the extent Respondent may suggest claim 22 is procedurally defaulted (see Doc. 27 76 at 11 n.4), such matters are properly before the state court in the first instance. Dixon, 847 1 1, 2021 (the restrictions on successive habeas petitions promulgated in Proposition 66 do not 2 apply to a newly available claim raised at the first opportunity); Martinez, 566 U.S. at 15-18 3 (discussing ineffective assistance of post-conviction as a basis to show “cause” for relief from 4 state default). Respondent has not demonstrated that Petitioner lacks the right to raise claim 22 in 5 state court. See 28 U.S.C. § 2254(b)(1), (c); Cal. Pen. Code § 1509(d). The Ninth Circuit has 6 made clear that in the context of a Rhines motion, the federal court should not usurp the state 7 court’s right to first address the merits of a colorable federal claim. Dixon, 847 F.3d at 722. 8 c. Intentionally Dilatory Conduct 9 Petitioner argues that he has diligently investigated, developed, and filed his federal 10 Petition, consistent with resource limitations, extraordinary circumstances, and federal law 11 requirements. (Doc. 75 at 7.) He also observes the 22-year delay reviewing his conviction and 12 sentence in state court. (Id.) 13 Respondent argues that Petitioner fails to provide any authority that commonly occurring 14 state court delay in reviewing a conviction and sentence demonstrates a lack of intentionally 15 dilatory conduct. (Doc. 76 at 13.) He argues that Petitioner’s prosecution of the case, including 16 serial equitable tolling motions and the failure to seek a Rhines stay contemporaneously with 17 filing of the Federal Amended Petition, smacks of the dilatory tactics forewarned by the Rhines 18 court. (Doc. 76 at 14, citing Rhines, 544 U.S. at 277-78 (“[N]ot all petitioners have an incentive 19 to obtain federal relief as quickly as possible. In particular, capital petitioners might deliberately 20 engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of 21 death.”).) 22 The Court finds nothing in the record suggesting that Petitioner has engaged in 23 intentionally dilatory litigation tactics, either prior to or after filing of the Federal Amended 24 Petition. Particularly, it appears that Petitioner has investigated and ascertained his unexhausted 25 claims, sought equitable tolling of the petition filing deadline, and sought stay and abeyance of 26 this action so that he may pursue state court exhaustion of those unexhausted claims, consistent 27 with the Court’s case management process and scheduling orders. Moreover, the Court, in 1 filing of the Federal Amended Petition. (Doc. 72 at 7-8.) 2 Petitioner is not dilatory in waiting for the federal court to rule on claim exhaustion status 3 before filing a petition in state court. See Lucas v. Davis, No. 15-cv-1224-GPC (WVG), 2017 4 WL 1807907, at *11 (S.D. Cal. May 5, 2017) (“[I]t is reasonable, and not at all dilatory, for 5 petitioner to await this court’s decision and present all unexhausted claims to the state court in a 6 single exhaustion petition.”); Leonard v. Davis, No. 2:17-cv-0796 JAM AC DP, 2019 WL 7 1772390, at *5 (E.D. Cal. Apr. 23, 2019), report and recommendation adopted, No. 2:17-cv-0796 8 JAM AC DP, 2019 WL 2162980 (E.D. Cal. May 17, 2019) (same). 9 C. Conclusions 10 The Court approves the parties’ stipulation that Federal Amended Petition claims 1-4, 6- 11 16, 18-21, 23, and 27 are fully exhausted, and claims 5, 17, 22, 24 and 25 are not fully 12 unexhausted. 13 Petitioner has satisfied the requirements of Rhines as to unexhausted claim 22. 14 Petitioner is entitled to Rhines stay and abeyance of this proceeding so that he may exhaust 15 claims in the Federal Amended Petition, in state court.7 16 The Rhines stay may not be indefinite or without reasonable time limits established for 17 Petitioner’s return to state court. 544 U.S. at 277-78. Although the duration of the stay of these 18 federal habeas proceedings is dependent upon how long the exhaustion petition is pending before 19 the state courts, it will conclude upon the rendering of a final decision in the state courts on the 20 exhaustion petition.8 Thus, the Court ORDERS: 21 1. Petitioner’s motion (Doc. 75) is GRANTED, and this federal habeas action is 22 STAYED AND HELD IN ABEYANCE of state exhaustion proceedings. 23 2. All currently scheduled dates in this federal habeas proceeding are hereby 24 VACATED. 25 7 The Court expresses no opinion on the ultimate merits of the unexhausted claims. 26 8 The Rhines analysis conducted above also strongly favors the issuance of the requested stay under the Court’s inherent power to manage its dockets and stay proceedings. See Ryan v. Gonzales, 568 U.S. 57, 73-74 (2013) (citing 27 Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Particularly, on the facts and circumstances of this case, granting a stay of these federal habeas proceedings pending exhaustion will eliminate the possibility of piecemeal litigation, see Calderon v. United States District Court (Taylor), 134 F.3d 981, 987-88 (9th Cir. 1998), abrogated on other grounds 1 3. Petitioner shall file his state exhaustion petition within 60 days from the date of 2 this order, and file notice thereof in this proceeding within 30 days of filing the 3 state exhaustion petition. 4 4. Petitioner shall inform this Court within 30 days of a final decision by the state 5 courts on the exhaustion petition. 6 7 IS SO ORDERED. g| Dated: _May 1, 2024 Cerin | Tower TED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28