Terry Dixon v. Renee Baker ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY D. DIXON, No. 14-16644
Petitioner-Appellant,
D.C. No.
v. 3:13-cv-00248-
RCJ-WGC
RENEE BAKER, Warden; NEVADA
ATTORNEY GENERAL,
Respondents-Appellees. OPINION
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted November 18, 2016
San Francisco, California
Filed February 2, 2017
Before: Alex Kozinski, Ronald Lee Gilman, *
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Gilman
* The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 DIXON V. BAKER
SUMMARY **
Habeas Corpus
The panel reversed the district court’s judgment
dismissing Nevada state prisoner Terry Dixon’s habeas
corpus petition and remanded with instructions to enter a
stay while Dixon pursues his unexhausted claims in state
court.
The panel held that because Dixon’s petition was only
partially exhausted, he should have been allowed to delete
the unexhausted claims and proceed on the exhausted claims
if his motion to stay and abey his federal case were denied.
The panel did not remand the case, however, because the
district court should have granted the motion for a stay since
(1) Dixon, who was not represented by counsel in his state
post-conviction proceeding, has established good cause for
his failure to exhaust; (2) at least one of his unexhausted
claims is not plainly meritless; and (3) the state concedes that
he has not engaged in intentionally dilatory litigation tactics.
COUNSEL
Ryan Norwood (argued), Assistant Federal Public Defender;
Rene L. Valladares, Federal Public Defender; Office of the
Federal Public Defender, Las Vegas, Nevada, 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.
DIXON V. BAKER 3
Karen A. Whelan (argued), Deputy Attorney General; Adam
Paul Laxalt, Attorney General; Office of the Attorney
General, Las Vegas, Nevada; for Respondents-Appellees.
OPINION
GILMAN, Circuit Judge:
Terry Dixon is serving a sentence of life imprisonment
without the possibility of parole for attempted murders
committed while Dixon was under the influence of drugs and
alcohol. After both his direct appeal and his pro se state post-
conviction proceedings proved unsuccessful, Dixon timely
filed a pro se petition for a writ of habeas corpus in the
United States District Court for the District of Nevada. His
petition alleged, among other things, the ineffective
assistance of trial counsel for failure to raise a voluntary-
intoxication defense and for failure to object to a prejudicial
photograph of Dixon presented during the state’s opening
statement at trial.
In July 2014, the district court dismissed the petition on
the ground that it contained claims that were never presented
to the state courts, and denied Dixon’s motion to stay the
proceedings on the ground that Dixon had not shown good
cause for his failure to exhaust those claims, even though
Dixon had pointed out that he lacked counsel in the state
post-conviction proceedings. In its order, the court asserted
that “[i]f and when [Dixon] exhausts his state court
remedies, he may file a new habeas petition in a new action.”
The one-year statute of limitations to file such a petition,
however, had already expired in September 2013.
For the reasons set forth below, we reverse the judgment
of the district court and remand with instructions that it enter
4 DIXON V. BAKER
a stay while Dixon pursues his unexhausted claims in state
court.
I.
Following guilty verdicts on charges of attempted
murder, Dixon was sentenced in March 2009 to four
consecutive terms of life imprisonment without the
possibility of parole. The charges arose from an incident in
October 2007 when Dixon, who was then under the
influence of crack cocaine, methamphetamine, marijuana,
and a pint of vodka, engaged in a gunfight with the police.
The state charged Dixon with, and a jury later convicted him
of, the attempted murder of four police officers. Dixon’s
convictions and sentence were affirmed by the Nevada
Supreme Court in March 2011. As a consequence, Dixon’s
conviction became final for purposes of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) when the
time expired to file a petition for a writ of certiorari with the
United States Supreme Court in June 2011. 28 U.S.C.
§ 2244(d)(1)(A); Sup. Ct. R. 13.
Dixon timely filed a pro se state post-conviction petition
in February 2012 alleging the ineffectiveness of his trial
counsel. He argued that his counsel was ineffective for,
among other reasons, failing to seek a pretrial writ
concerning the sufficiency of the evidence, failing to obtain
exculpatory evidence concerning the location where Dixon
was standing in his house during the shootout, and failing to
conduct an adequate pretrial investigation. The Nevada
Supreme Court denied Dixon’s petition in April 2013,
entering a final judgment to that effect in May 2013.
Dixon timely filed his habeas petition in the United
States District Court for the District of Nevada that same
month. The petition contained a series of claims concerning
DIXON V. BAKER 5
the alleged ineffectiveness of Dixon’s trial counsel, nearly
all of which had been raised, and thereby exhausted, in
Dixon’s state post-conviction case. But in September 2013,
before the state answered, Dixon sought leave to amend his
petition to include a series of claims that he conceded had
not been previously raised in his state post-conviction
proceedings, and consequently were unexhausted. Those
claims charged that Dixon’s trial counsel failed to raise the
defense of voluntary intoxication and object to a PowerPoint
presentation that depicted Dixon with the word “GUILTY”
superimposed over his image. As to each unexhausted
claim, Dixon explained in his petition that he had failed to
raise the claim in his state post-conviction proceedings
because he had lacked the assistance of counsel.
Dixon then moved to hold his habeas petition in
abeyance pending the resolution of the unexhausted claims
in state court. The state opposed both the motion to amend
and the motion to stay the habeas proceedings. During the
pendency of this case in the district court, Dixon also twice
sought the appointment of counsel. In both instances his
motions were opposed by the state and denied by the district
court.
In a July 2014 order, the district court granted Dixon’s
motion to amend but then dismissed the case “for failure to
exhaust claims in the amended petition.” The court also
denied Dixon’s motion to stay the case pending the
resolution of his unexhausted claims in state court on the
ground that Dixon “has not shown good cause for his failure
to exhaust his claims in state court prior to initiating federal
habeas proceedings.” Finally, the July 2014 order provided
that “[i]f and when [Dixon] exhausts his state court
remedies, he may file a new habeas petition in a new action.”
Absent equitable tolling, however, such a petition would be
6 DIXON V. BAKER
time-barred because the AEDPA statute of limitations had
already expired roughly 10 months before the date of the
order. See 28 U.S.C. § 2244(d)(1).
This court granted a certificate of appealability and
appointed counsel. Dixon’s timely appeal followed.
II.
A. Standard of review
We review de novo an order dismissing a petition for a
writ of habeas corpus based on a failure to exhaust state-
court remedies. Rhoades v. Henry, 638 F.3d 1027, 1034 (9th
Cir. 2010). The denial of a stay and abeyance, on the other
hand, is reviewed under the abuse-of-discretion standard.
Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014).
B. Dismissal of the petition
A prisoner in state custody may seek to remedy a
violation of his federal constitutional rights by petitioning
for a writ of habeas corpus in federal court. 28 U.S.C.
§ 2254. But before such a petition may be heard, the
petitioner must “seek full relief first from the state courts,
thus giving those courts the first opportunity to review all
claims of constitutional error.” Rose v. Lundy, 455 U.S. 509,
518–19 (1982). The exhaustion doctrine reflects “the
relations existing, under our system of government, between
the judicial tribunals of the Union and of the states, and . . .
recogni[zes] . . . the fact that the public good requires that
those relations be not disturbed by unnecessary conflict
between courts equally bound to guard and protect rights
secured by the constitution.” Ex parte Royall, 117 U.S. 241,
251 (1886). Adhering to this doctrine thus “protect[s] the
state courts’ role in the enforcement of federal law and
DIXON V. BAKER 7
prevent[s] disruption of state judicial proceedings.” Lundy,
455 U.S. at 518.
In 1982, the Supreme Court held that “a district court
must dismiss habeas petitions containing both unexhausted
and exhausted claims.” Id. at 522. Such a petition is
typically called a “mixed petition.” Id. at 510. The “total
exhaustion rule” announced in Lundy was deemed
appropriate at that time because it carried out the exhaustion
doctrine’s goal of promoting comity between state and
federal courts and “d[id] not unreasonably impair the
prisoner’s right to relief.” Id. at 522.
The second consideration—that a rule of total exhaustion
would not impair a federal petitioner’s ability to obtain
federal collateral review—was predicated on the fact that,
when Lundy was decided, “there was no statute of limitations
on the filing of federal habeas corpus petitions.” Rhines v.
Weber, 544 U.S. 269, 274 (2005). This meant that
dismissing a mixed petition on exhaustion grounds did not
preclude a prisoner from refiling his petition. See Slack v.
McDaniel, 529 U.S. 473, 486 (2000) (observing that a Lundy
dismissal “contemplated that the prisoner could return to
federal court after the requisite exhaustion”).
All of this changed when Congress enacted AEDPA in
1996. AEDPA instituted a one-year statute of limitations for
federal habeas corpus petitions, 28 U.S.C. § 2244(d)(1), and
also codified the Lundy total-exhaustion requirement, id.
§ 2254(b)(1). Although the filing of a state post-conviction
petition will toll the statute of limitations, id. § 2244(d)(2),
the filing of a federal petition does not, Duncan v. Walker,
533 U.S. 167, 181–82 (2001). This means that if a
petitioner’s mixed petition is dismissed pursuant to Lundy,
he risks having his federal claims barred by AEDPA’s
8 DIXON V. BAKER
statute of limitations when he seeks relief in a subsequently
filed, fully exhausted petition.
Recognizing that this outcome potentially ran afoul of
Lundy’s premise that the total-exhaustion rule not
“unreasonably impair the prisoner’s right to relief,” Lundy,
455 U.S. at 522, the Supreme Court in 2005 approved two
means of ensuring that a federal petitioner would have his
federal claims heard even if his petition was mixed. The first
method is to stay the case and hold it in abeyance pending
exhaustion in state court of the petitioner’s unexhausted
claims. Rhines, 544 U.S. at 275–76. Alternatively, if a stay
is deemed inappropriate, the district court must “allow the
petitioner to delete the unexhausted claims and to proceed
with the exhausted claims if dismissal of the entire petition
would unreasonably impair the petitioner’s right to obtain
federal relief.” Id. at 278.
With respect to the second method approved by Rhines,
we have repeatedly warned the district courts that they “may
not dismiss a mixed petition without giving the petitioner the
opportunity to delete the unexhausted claims.” Valerio v.
Crawford, 306 F.3d 742, 770 (9th Cir. 2002); accord
Jefferson v. Budge, 419 F.3d 1013, 1016–17 (9th Cir. 2005);
Tillema v. Long, 253 F.3d 494, 503 (9th Cir. 2001),
overruled on other grounds by Pliler v. Ford, 542 U.S. 225,
231 (2004); Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir.
2000). This warning is compelled by the fact that, unless
either a stay of the habeas proceedings or leave to delete the
unexhausted claims is granted, a federal habeas petitioner
will lose the opportunity to have his properly exhausted
federal claims heard in federal court simply because they
were submitted in a mixed petition. Neither the Supreme
Court in Lundy nor Congress in enacting AEDPA intended
DIXON V. BAKER 9
this outcome. Rhines, 544 U.S. at 275–79; see also Anthony,
236 F.3d at 574.
The court below had before it an amended habeas
petition that expressly documented which claims were
exhausted and which were not. According to the state,
however, the district court’s order dismissing that petition is
not clear as to whether the court’s reason for dismissal was
that it considered the claims entirely unexhausted or only
partly exhausted. A comparison of the Nevada Supreme
Court’s decision denying Dixon’s state post-conviction
claims with his federal habeas petition reveals that a
substantial number of Dixon’s claims were in fact exhausted.
Because Dixon’s petition was only partially
unexhausted, Dixon should have been allowed to delete the
unexhausted claims and proceed on the exhausted claims if
his motion to stay and abey the case were denied. See
Rhines, 544 U.S. at 278 (citing Lundy, 455 U.S. at 520
(plurality opinion of O’Connor, J.) (“A total exhaustion rule
will not impair that interest [the petitioner’s interest in
obtaining speedy federal relief] since he can always amend
the petition to delete the unexhausted claims, rather than
returning to state court to exhaust all of his claims.”)). We
do not remand the case to allow Dixon the option of deleting
his unexhausted claims, however, because the district court
should have granted his request to stay his case.
C. Denial of the motion to stay
A stay and abeyance is appropriate when the petitioner
demonstrates “good cause” for his failure to exhaust his
claims in state court, where his claims are not plainly
meritless, and where he has not engaged in “abusive
litigation tactics.” Rhines, 544 U.S. at 278. In this case, the
state concedes that Dixon has not engaged in abusive
10 DIXON V. BAKER
litigation tactics, but it contends that the district court did not
abuse its discretion in denying Dixon’s motion to stay
because Dixon failed to establish good cause for his failure
to exhaust and because his unexhausted claims lack any
plausible merit. We hold that Dixon established good cause
and that his unexhausted claims were not plainly meritless.
1. Dixon has established good cause because he was
not represented by counsel in his state post-
conviction proceeding
The caselaw concerning what constitutes “good cause”
under Rhines has not been developed in great detail. Blake
v. Baker, 745 F.3d 977, 980 (9th Cir. 2014) (“There is little
authority on what constitutes good cause to excuse a
petitioner’s failure to exhaust.”). The Supreme Court has
addressed the issue only once, when it noted that a
“petitioner’s reasonable confusion about whether a state
filing would be timely will ordinarily constitute ‘good cause’
for him to file in federal court.” Pace v. DiGuglielmo,
544 U.S. 408, 416 (2005) (citing Rhines, 544 U.S. at 278).
Other circuits have found good cause when, for example, the
prosecution has wrongfully withheld information. Jalowiec
v. Bradshaw, 657 F.3d 293, 304–05 (6th Cir. 2011). We
have held that good cause under Rhines does not require a
showing of “extraordinary circumstances,” Jackson v. Roe,
425 F.3d 654, 661–62 (9th Cir. 2005), but that a petitioner
must do more than simply assert that he was “under the
impression” that his claim was exhausted, Wooten v.
Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008).
We do know, however, that a petitioner has been found
to demonstrate “good cause” where he meets the good-cause
standard announced in Martinez v. Ryan, 132 S. Ct. 1309,
1320 (2012). Blake, 745 F.3d at 983–84. Martinez carved
out an exception to the general rule, stated in Coleman v.
DIXON V. BAKER 11
Thompson, 501 U.S. 722, 753–54 (1991), that “ignorance or
inadvertence” on the part of a petitioner’s post-conviction
counsel does not constitute cause to excuse a procedural
default of a claim. Specifically, the Martinez Court
concluded that “[w]here, under state law, claims of
ineffective assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a substantial
claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” Martinez, 132 S. Ct. at 1320
(emphasis added).
In Blake, we concluded that the ineffective assistance of
post-conviction counsel could constitute good cause for a
Rhines stay, provided that the petitioner’s assertion of good
cause “was not a bare allegation of state postconviction
[ineffective assistance of counsel], but a concrete and
reasonable excuse, supported by evidence.” Blake, 745 F.3d
at 983. The court further observed that “good cause under
Rhines, when based on [ineffective assistance of counsel],
cannot be any more demanding than a showing of cause
under Martinez to excuse state procedural default.” Id. at
983–84. We emphasized, in response to the idea that
ineffective assistance of post-conviction counsel could
always be raised, that Rhines’s requirement that claims not
be plainly meritless and that the petitioner not engage in
dilatory litigation tactics “are designed . . . to ensure that the
Rhines stay and abeyance is not . . . available in virtually
every case,” id. at 982 (internal quotation marks omitted).
Dixon was without counsel in his state post-conviction
proceedings. During the pendency of his federal habeas
proceedings, Dixon repeatedly asserted this fact. He then
incorporated by reference all previous filings in which he
12 DIXON V. BAKER
had asserted his lack of state post-conviction counsel in
support of his motion to stay the case under Rhines. Based
on the plain language of Blake—that good cause under
Rhines “cannot be any more demanding than a showing of
cause under Martinez to excuse state procedural default,” id.
at 983–84—the statement that “there was no counsel” in
Dixon’s state post-conviction case is sufficient to establish
good cause. See Martinez, 132 S. Ct. at 1320.
Despite Blake’s clear language, the state contends that
Dixon may not rely upon Blake to demonstrate good cause
because he did not marshal the same kind of evidence that
was in the record in Blake. The petitioner in Blake, who was
represented by counsel in his state post-conviction
proceedings, proffered evidence in his federal habeas
petition that his post-conviction counsel was ineffective for
failing to exhaust Blake’s claim that his trial counsel was
ineffective. Id. at 982–83. The state argues that, because
Dixon has not put forward substantially similar evidence, he
has not demonstrated good cause.
We find the state’s argument unpersuasive. Where a
petitioner was represented by state post-conviction counsel
and must establish, in his federal habeas proceedings, that
counsel’s ineffectiveness for failure to exhaust, the petitioner
must do more than simply make “a bald assertion” of
ineffectiveness. Id. at 982. If the petitioner was without
state post-conviction counsel entirely, however, the only
evidence available concerning good cause would, as in this
case, be the easily proven assertion that the petitioner was
without counsel in those proceedings. A petitioner cannot
have had effective assistance of counsel if he had no counsel
at all. Requiring Dixon to come forward with additional
evidence over and above the fact that he lacked counsel, as
the state is arguing, is inconsistent with this court’s previous
DIXON V. BAKER 13
decision in Blake and the Supreme Court’s decision in
Martinez.
A petitioner who is without counsel in state post-
conviction proceedings cannot be expected to understand the
technical requirements of exhaustion and should not be
denied the opportunity to exhaust a potentially meritorious
claim simply because he lacked counsel. Such a denial
strikes us as unwarranted when even a petitioner who did
have counsel in his state post-conviction proceedings has a
path to a stay under Rhines if he alleges a plausible claim
that his post-conviction counsel was ineffective. Id. at 983–
84.
We recognize, of course, that many state post-conviction
proceedings are conducted pro se. For this group of federal
habeas petitioners, the first element of the Rhines test can
easily be established to the extent that they were without
counsel. But the other two elements of the test—claim
plausibility and the absence of abusive tactics—will weed
out plainly meritless claims and will help ensure that a
dilatory litigant’s failure to exhaust his claims in state court
will not be condoned. See Rhines, 544 U.S. at 278.
Furthermore, habeas petitioners who can avoid a
procedural default under Martinez are at least permitted to
have the merits of their exhausted claims reached. In
contrast, a petitioner who is excused only for a failure to
exhaust under Rhines might not have the merits of his claim
adjudicated even after he is given leave to exhaust the claim
in state court due to the operation of another procedural bar
that the state might raise. See, e.g., Hertz & Liebman,
2 Federal Habeas Corpus Practice & Procedure § 23.1 (6th
ed. 2011) (noting that, in contrast to the exhaustion doctrine,
which “never wholly forecloses, but only postpones, federal
relief,” “[i]f a [procedural] default occurs, if the state asserts
14 DIXON V. BAKER
it as a defense to habeas corpus relief, and if none of the
exceptions to the procedural default rule apply, then federal
court relief is foreclosed” (emphasis in original)). To have a
procedural default excused is therefore of greater
consequence for a habeas petitioner than to have a failure to
exhaust excused. The standard for excusing a failure to
exhaust should therefore not be any more demanding than
the standard for excusing a procedural default. With these
observations in mind, we now turn to the second factor of
the Rhines test.
2. At least one of Dixon’s claims is not “plainly
meritless”
A federal habeas petitioner must establish that at least
one of his unexhausted claims is not “plainly meritless” in
order to obtain a stay under Rhines. 544 U.S. at 277. In
determining whether a claim is “plainly meritless,”
principles of comity and federalism demand that the federal
court refrain from ruling on the merits of the claim unless “it
is perfectly clear that the petitioner has no hope of
prevailing.” Cassett v. 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 believe it is warranted.” Id.
(citing Rose v. Lundy, 455 U.S. 509, 515 (1982)).
At least one of Dixon’s unexhausted claims appears on
its face to not be “plainly meritless.” During the
prosecution’s opening statement at Dixon’s trial, the state
projected before the jury Dixon’s booking photograph with
the word “GUILTY” written across it. Dixon’s counsel did
not object. In a later case, the Nevada Supreme Court
recognized that this exact practice “undermined the
presumption of innocence, . . . which is a basic component
of ‘the fair trial’ guaranteed by the Fourteenth Amendment.”
DIXON V. BAKER 15
Watters v. State, 313 P.3d 243, 248 (Nev. 2013) (quoting
Estelle v. Williams, 425 U.S. 501, 503 (1976)) (reversing the
defendant’s conviction on that ground) (alterations omitted).
An attorney’s failure to raise a state-law objection at trial—
or the likely success of a direct appeal on the same basis—
may support a claim for ineffective assistance of counsel in
a later federal habeas petition. See Carrera v. Ayers,
699 F.3d 1104, 1107–09 (9th Cir. 2012) (en banc).
Watters does not conclusively establish that Dixon’s
ineffective-assistance-of-counsel claim has merit because,
on remand, Dixon must go beyond showing that his claim is
not “plainly meritless”; he must prove that he was prejudiced
by his trial counsel’s deficient performance in order to
prevail on a claim for the ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668, 700 (1984).
But Watters does preclude a ruling that Dixon’s claim is
“plainly meritless” for the purposes of Rhines.
In sum, Dixon has established “good cause” for his
failure to exhaust, and we have concluded that at least one of
his unexhausted claims is not “plainly meritless.” The state,
moreover, concedes that he has not engaged in “intentionally
dilatory litigation tactics.” See Rhines, 544 U.S. at 278; R.
67. Rhines therefore compels the conclusion that the district
court should have granted Dixon’s motion to stay his federal
habeas case while he exhausts his potentially meritorious
claims. See id. at 277–78.
III.
For all of the reasons set forth above, we reverse the
judgment of the district court and remand the case with
instructions to grant Dixon’s motion for a stay and abeyance
16 DIXON V. BAKER
with reasonable time limits while he pursues his unexhausted
claims in state court.
REVERSED and REMANDED.