Jackson v. Roe

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED JAY JACKSON,  No. 02-56210
Petitioner-Appellant,
v.  D.C. No.
CV-00-11975-DT
ERNEST C. ROE, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Dickran M. Tevrizian, District Judge, Presiding
Argued and Submitted
July 11, 2005—Pasadena, California
Filed September 23, 2005
Before: Stephen Reinhardt, Alex Kozinski, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
13649
JACKSON v. ROE 13651
COUNSEL
Gretchen Fusilier, Carlsbad, California, for the petitioner-
appellant.
Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General,
Pamela C. Hamanaka, Senior Assistant Attorney General,
Brad D. Levenson, Deputy Attorney General, and Alene M.
Games, Deputy Attorney General, Los Angeles, California,
for the respondent-appellee.
13652 JACKSON v. ROE
OPINION
BERZON, Circuit Judge:
Fred Jackson filed a “mixed” 28 U.S.C. § 2254 habeas cor-
pus petition. The district court refused to stay proceedings so
that he could exhaust the unexhausted claim, which was at
that time pending before the California Supreme Court.
Rhines v. Weber, 125 S. Ct. 1528 (2005), however, holds that
a federal court must, in limited circumstances, stay a mixed
petition to allow a petitioner to present an unexhausted claim
to a state court for review. Id. at 1535. Under Rhines, a district
court’s decision to grant or deny a stay is reviewed for abuse
of discretion. Id. Because the district court in this case failed
to apply the standards regarding staying a mixed habeas peti-
tion enunciated in Rhines — quite understandably, as Jack-
son’s petition was dismissed almost three years prior to the
decision in Rhines — we vacate and remand to allow the dis-
trict court the opportunity to do so.
I.
Appellant was convicted in 1997 in California state court
of two counts of attempted first degree murder and two counts
of second degree robbery, and sentenced to a term of 126
years to life in prison. He unsuccessfully appealed his convic-
tion to the California Court of Appeal but did not file a peti-
tion for review in the California Supreme Court. Jackson then
sought collateral review of his conviction by writs of habeas
corpus, filed in the Los Angeles County Superior Court on
July 2, 1999, in the California Court of Appeal on February
3, 2000, and in the California Supreme Court on June 22,
2000. See Carey v. Saffold, 536 U.S. 214, 221 (2002)
(describing California’s unique “original writ” system for
habeas corpus review in which petitioners may file new origi-
nal petitions in appellate courts rather than appeal lower court
determinations). In each petition, the same three issues were
raised: whether (1) the trial court erred in denying the motion
JACKSON v. ROE 13653
for a mistrial after Jackson stabbed his counsel in front of the
jury; (2) the trial judge abused his discretion in failing to
investigate Jackson’s allegations that his counsel molested
him and sought sexual favors in exchange for adequate repre-
sentation and in failing to disqualify himself; or (3) the trial
court violated Jackson’s due process rights by failing to sus-
pend proceedings pending a hearing on his sanity. Each peti-
tion was denied, with the Supreme Court of California
denying relief on September 27, 2000.
Jackson then filed a federal habeas corpus petition in the
District Court for the Central District of California on Decem-
ber 18, 2000, raising the same three issues he had presented
in his state habeas proceedings. In response to the state’s
motion to dismiss, Jackson filed a traverse, alleging for the
first time that his appellate counsel had rendered ineffective
assistance by failing on direct appeal to raise viable issues. No
such ineffective assistance claim had been exhausted in state
court. In the same filing, Jackson also alleged that his trial
counsel was ineffective, a claim that also appears to be unex-
hausted.
The magistrate judge issued his Report and Recommenda-
tion on March 7, 2002, recommending that the petition be dis-
missed for failure to exhaust. The magistrate judge considered
Jackson’s petition mixed, because it included the unexhausted
claim that he had received ineffective assistance of appellate
counsel.1
In addition to determining that Jackson’s petition was
mixed and therefore must be dismissed, the magistrate judge
1
The magistrate judge considered it of no import that the unexhausted
ineffective assistance of appellate counsel claim was raised only in the
traverse, deeming the claim to be part of the petition because Jackson
wanted it reviewed as a “separate constitutional claim.” The Report and
Recommendation did not discuss Jackson’s allegation that his trial counsel
had been ineffective.
13654 JACKSON v. ROE
also concluded that Jackson’s exhausted claims were proce-
durally defaulted.2 In light of this dual holding, the magistrate
judge offered Jackson two options: (1) withdraw the unex-
hausted ineffective assistance claim, leaving a fully
exhausted, but procedurally barred, petition or (2) leave the
unexhausted issue in the petition, in which case the petition
would be denied without prejudice as mixed. In his Report
and Recommendation, the magistrate judge also considered,
sua sponte, the propriety of a stay to allow Jackson time to
exhaust the ineffective assistance claim but declined to issue
one, stating that there were “no extraordinary circumstances
that would warrant a stay,” as there was “no reason why Jack-
son could not have raised this constitutional claim in the state
courts prior to presenting it to this Court.”
On March 26, 2002, Jackson filed a motion requesting that
his petition be held in abeyance until his ineffective assistance
2
The California Supreme Court denied Jackson’s habeas petition with
a single citation to In re Dixon, 41 Cal. 2d 756, 759 (1953). Dixon sets
forth a procedural bar whereby a petitioner is precluded from raising on
habeas issues that could have been, but were not, raised on direct appeal.
Id. Under the doctrine of procedural default, a petitioner who has
defaulted on his claims in state court is barred from raising them in federal
court so long as the default is “pursuant to an independent and adequate
state procedural rule.” Coleman v. Thompson, 501 U.S. 722, 750 (1991)
(unless cause and prejudice are demonstrated or a fundamental miscar-
riage of justice would result).
In his Report and Recommendation, the magistrate judge held that the
California Supreme Court’s citation to Dixon was an independent and ade-
quate state ground that precluded federal review. In this appeal, Jackson
challenges this procedural default determination. Because the district
judge ultimately dismissed Jackson’s petition for failure to exhaust, not for
procedural default, see infra, we do not address the merits of Jackson’s
challenge. We do note, however, that after the magistrate judge’s determi-
nation as to the adequacy of the Dixon bar, we decided Bennett v. Mueller,
322 F.3d 573 (9th Cir. 2003), which established a burden-shifting test to
govern challenges to the adequacy of a state procedural bar. Id. at 584-85.
Should the district court have occasion to examine this issue again on
remand, the procedure announced in Bennett should be applied.
JACKSON v. ROE 13655
of counsel claim, then pending before the California Supreme
Court, was fully exhausted.3 The magistrate judge denied
Jackson’s request on May 9, 2002. After Jackson did not exer-
cise the option to withdraw his unexhausted claim, the district
judge adopted the Report of the magistrate judge and dis-
missed Jackson’s petition without prejudice on May 10, 2002.
Jackson filed a Notice of Appeal and an application for a
certificate of appealability on June 17, 2002. Although the
district court denied the application, Jackson obtained a certif-
icate of appealability from this Court on December 17, 2002.
II.
[1] Labeled “one of the pillars of federal habeas corpus
jurisprudence,” the doctrine of exhaustion requires a peti-
tioner to present his claims to a state court for review before
seeking relief in federal court. Calderon v. United States Dis-
trict Court (Taylor), 134 F.3d 981, 984 (9th Cir. 1998). For
reasons of comity and federalism, the Supreme Court required
exhaustion of state remedies long before Congress included
the requirement in the statute governing federal habeas corpus
review of state court convictions. See Ex parte Royall, 117
U.S. 241, 251 (1886); Act of June 25, 1948, ch. 646, 62 Stat.
869, 967 (codified as amended at 28 U.S.C. § 2254(b)).
[2] The current statutory exhaustion requirement prevents
a federal court from granting habeas relief “unless it appears
that (A) the applicant has exhausted the remedies available in
the courts of the State; or (B)(i) there is an absence of avail-
able State corrective process; or (ii) circumstances exist that
3
Although Jackson’s motion does not clarify which of the two ineffec-
tive assistance claims is the unexhausted issue he submitted to the Califor-
nia Supreme Court, his Objections to the Report and Recommendation of
the magistrate judge, filed on the same date as his motion, indicate that he
was awaiting a response on the ineffective assistance of appellate counsel
claim.
13656 JACKSON v. ROE
render such process ineffective to protect the rights of the appli-
cant.”4 28 U.S.C. § 2254(b)(1). Over twenty years ago the
Supreme Court decided the proper course of action to be
taken when a district court is faced with a “mixed petition,”
that is, a petition that presents some claims that have been
exhausted and some that have yet to be fully and finally adju-
dicated by a state court. The Supreme Court adopted a rule of
“total exhaustion,” requiring that all claims in a habeas peti-
tion be exhausted before a federal court can act on the petition.5
Rose v. Lundy, 455 U.S. 509, 522 (1982). Under the rule
announced in Rose, a district court had to “dismiss such
‘mixed petitions,’ leaving the prisoner with the choice of
returning to state court to exhaust his claims or of amending
or resubmitting the habeas petition to present only exhausted
claims to the district court.”6 Id. at 510.
Although the language of Rose seemed to allow only the
above three options, this court, in a footnote in Neuschafer v.
Whitley, 860 F.2d 1470 (9th Cir. 1988), suggested an alterna-
tive procedure, that of stay-and-abeyance: “When a petitioner
has not exhausted his state remedies before filing a federal
habeas petition, a district court may hold the federal petition
in abeyance, issue a stay of execution, and allow the petitioner
4
Jackson does not claim that California lacks adequate avenues of relief
or that circumstances render state relief ineffective.
5
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 1218, amended 28
U.S.C. § 2254 to include a provision that allows a district court to dismiss
a habeas petition on the merits, notwithstanding a petitioner’s failure to
exhaust. 28 U.S.C. § 2254(b)(2). After AEDPA then, a district court can
dismiss a mixed petition on the merits but may not grant relief unless and
until all the claims therein have been exhausted in state court.
6
The fact that the Supreme Court in Rose permitted a petitioner to cure
the defect by amending the petition to remove the unexhausted claims and
proceeding with an exhausted petition led Justice Blackmun to comment
that he failed “to understand what all the fuss is about,” in light of the fact
that the Court of Appeals in Rose directed the district court simply to dis-
miss the unexhausted claims before acting on the petition. Rose, 455 U.S.
at 530 (Blackmun, J., concurring in the judgment).
JACKSON v. ROE 13657
an opportunity to exhaust his state remedies.” Id. at 1472 n.1.
Subsequent Ninth Circuit cases, however, rejected the stay-
and-abeyance procedure offered in Neuschafer, holding it
inconsistent with Rose. Taylor, 134 F.3d at 985; see also Cal-
deron v. United States District Court (Gordon), 107 F.3d 756,
760 (9th Cir. 1997) (holding that the district court erred when
it relied on Neuschafer for the proposition that “dismissal of
mixed habeas petitions ‘is not the rule in the Ninth Circuit’ ”);
Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir. 1997)
(finding the Neuschafer procedure to be dictum and inconsis-
tent with Rose).
In light of the Ninth Circuit’s rulings that district courts
lacked the power to stay mixed petitions, district courts within
the Circuit developed a three-step procedure applicable to
petitions that contained both exhausted and unexhausted
claims. See Taylor, 134 F.3d at 986. The procedure included
(1) allowing a petitioner to amend his petition to remove the
unexhausted claims — as Rose indicated; (2) staying and
holding in abeyance the amended, fully exhausted petition to
allow a petitioner the opportunity to proceed to state court to
exhaust the deleted claims; and (3) permitting the petitioner
after completing exhaustion to amend his petition once more
to reinsert the newly exhausted claims back into the original
petition. Id. While the court in Taylor expressed reservations
about the three-step procedure, it concluded the district court
did have discretion to stay an exhausted petition.7 Id. at 988;
see also Fetterly v. Paskett, 997 F.2d 1295, 1301 (9th Cir.
1993) (holding that it was an abuse of discretion for a district
court not to stay an exhausted petition pending exhaustion of
a newly discovered claim).
This court later approved the three-step procedure, includ-
7
Taylor declined to address the propriety on the third step, that of re-
amending the petition to include a newly exhausted claim, holding that
such a decision would be premature because, in that case, the district court
had not yet permitted such an amendment. Taylor, 134 F.3d at 988-89.
13658 JACKSON v. ROE
ing the amendment of the original petition to include a newly
exhausted claim, as within a trial court’s discretion. See
James v. Pliler, 269 F.3d 1124, 1127 (9th Cir. 2001). Later,
in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), we required
a district court at least to consider the option of holding the
exhausted petition in abeyance, so that a petitioner would be
able to seek exhaustion in state court before attempting to
amend his federal petition to include the newly exhausted
claims.
The court in Kelly also provided guidance to district courts
considering such an option, stating that a stay is “particularly
appropriate when an outright dismissal will render it unlikely
or impossible for the petitioner to return to federal court
within the one-year limitation period imposed by [AEDPA].”
Id. at 1070. While recognizing that the decision remained
within the district court’s discretion, Kelly signaled that the
Ninth Circuit joined “the ‘growing consensus’ in recognizing
the clear appropriateness of a stay when valid claims would
otherwise be forfeited.” Id.; see also Olvera v. Giurbino, 371
F.3d 569, 574 (9th Cir. 2004) (finding an abuse of discretion
because the district court failed to grant a stay when the peti-
tioner could not have exhausted his claims and returned to
federal court within AEDPA’s deadline).
Despite the availability of the three-step procedure, it
appears that neither the petitioner nor the district court
addressed this option when considering the possibility of a
stay. The record does not reflect, in either the Report and Rec-
ommendation of the magistrate judge or Jackson’s subsequent
Motion to Request Petitioner’s Writ of Habeas Corpus Be
Held in Abeyance, that striking the unexhausted claim before
issuing the stay was ever contemplated. Rather, it appears that
both the petitioner and the magistrate judge were proceeding
upon the assumption that the “mixed petition” could be
stayed, without resorting to the three-step procedure. Accord-
ingly, we have no occasion in this case to consider the contin-
JACKSON v. ROE 13659
ued propriety of the three-step stay-and-abeyance procedure
outlined in Taylor and Kelly.
III.
[3] More than two decades after mandating total exhaustion
in Rose, the Court in Rhines v. Weber, 125 S. Ct. 1528 (2005),
weighed in on the question of whether a district court may
stay, rather than dismiss, a mixed habeas petition. Specifi-
cally, the Court considered “whether a federal district court
has discretion to stay [a] mixed petition to allow the petitioner
to present his unexhausted claims to the state court in the first
instance, and then to return to federal court for review of his
perfected petition.” Id. at 1531. The Court held that a district
court does in fact have such discretion, under the “limited cir-
cumstances” in which there was “good cause for the petition-
er’s failure to exhaust his claims first in state court.” Id. at
1535.
In Rhines, the Supreme Court noted that because of Rose’s
total exhaustion requirement and AEDPA’s one year statute
of limitations, petitioners with mixed petitions “run the risk of
forever losing their opportunity for any federal review of their
unexhausted claims.” Id. at 1533. This risk arises because a
petitioner could be faced with the choice of either striking his
unexhausted claims and going forward with an exhausted
petition or allowing the whole petition to be dismissed, with-
out prejudice, as mixed. Under the first option, once the other
claims had been exhausted, a petitioner could return to federal
court. If his original petition had already been decided on the
merits, he could include the newly exhausted claims in a sub-
sequent petition. The second petition, however, would be sub-
ject to the strict limitations AEDPA places on successive
petitions.8 See 28 U.S.C. § 2244(b). The second option avail-
8
If the petitioner was able to return to federal court before the court had
decided his exhausted claims on the merits and successfully amend the
undecided petition to include the newly exhausted claims, the recent
13660 JACKSON v. ROE
able under Rose is no more desirable for a petitioner, given
the fact that AEDPA’s one year statute of limitations will
likely have run before a petitioner is able fully to exhaust state
court remedies on the mixed petition and return to federal
court. Rhines, 125 S. Ct. at 1533-34 (noting that a petitioner
who files on time in federal court will have no way of control-
ling when the district court will act on his petition); see 28
U.S.C. § 2244(d).
[4] In light of the above circumstances, Rhines concluded
that a district court has discretion to stay a mixed petition to
allow a petitioner time to return to state court to present unex-
hausted claims.9 In making this determination, however, the
Court held that the stay-and-abeyance procedure must be
applied consistently with AEDPA’s twin purposes: “reduc-
[ing] delays in the execution of state and federal criminal sen-
tences” and encouraging state “petitioners to seek relief from
Supreme Court decision in Mayle v. Felix, 125 S. Ct. 2562 (2005), might
significantly limit his ability to have his amended claims “relate back” to
the filing of the original petition and be considered timely under AEDPA.
In Mayle, the Court held that our former understanding of the relation-
back standard under Federal Rule of Civil Procedure 15(c), which allowed
an amendment to a habeas petition to “relate back” to the date of the origi-
nal petition “so long as the new claim stems from the habeas petitioner’s
trial, conviction, or sentence,” was too broad. Id. at 2570. Instead, held the
Court, an amended claim in a habeas petition relates back for statute of
limitations purposes only if it shares a “common core of operative facts”
with the original claim. Id. at 2574.
9
This court’s recent decision in Jefferson v. Budge, 419 F.3d 1013 (9th
Cir. 2005), addressed the question of whether a district court must offer
a petitioner the choices announced in Rose before dismissing a mixed
habeas petition. Id. at 1014. Answering the question presented in the affir-
mative, Jefferson contained the following statement: “Rose mandates that
a district court must dismiss mixed petitions and leave petitioners with a
choice of paths to pursue. [Pliler v.] Ford reiterates this dictate by quoting
directly from Rose, and Rhines follows suit.” Id. at 1016 (internal citations
omitted). We understand this reference to mean that when a district court
opts not to stay a mixed petition pursuant to Rhines, the requirements set
forth in Rose continue to govern.
JACKSON v. ROE 13661
state courts in the first instance.” Rhines, 125 S. Ct. at 1534(internal quotation marks omitted). As a result, Rhines cau-
tioned, a stay-and-abeyance “should be available only in lim-
ited circumstances,” and is appropriate only when the district
court determines that there was “good cause” for the failure
to exhaust. Id. at 1535. Stays are also improper when the
unexhausted claims are “plainly meritless” or where the peti-
tioner has engaged in “abusive litigation tactics or intentional
delay.” Id. When these factors are absent, however, and the
petitioner has good cause for the failure to exhaust, Rhines
states “it likely would be an abuse of discretion for a district
court to deny a stay.” Id.[5] Hindsight is of course twenty-twenty, and Rhines has
now established that the Neuschafer footnote was correct in
stating that district courts may sometimes properly stay mixed
habeas petitions. To the extent our earlier cases state other-
wise, they are no longer good law.
What Rhines did not do, however, is comment on the valid-
ity of the three-step stay-and-abeyance procedure approved in
Taylor and Kelly. The two approaches are distinct: Rhines
applies to stays of mixed petitions, whereas the three-step pro-
cedure applies to stays of fully exhausted petitions and
requires additional steps — the amendment of the original
mixed petition and a second amendment to add the newly
exhausted claims. Because the district court in this case con-
sidered the option of staying Jackson’s mixed petition, with-
out regard to the possibility of excising the unexhausted issue
and later, after exhaustion, amending the petition to reattach
the claim, Rhines directly controls. Accordingly, we leave for
another day the question of whether the stay standard
announced by the Supreme Court in Rhines applies to our
three-step stay-and-abeyance procedure.10
10
We note in passing that because Rhines has now authorized stays of
mixed petitions, albeit in limited circumstances, the three-step procedure
may fall into disuse. Not only does the three-step process seem unneces-
13662 JACKSON v. ROE
IV.
Having canvassed the current landscape of the law concern-
ing the treatment of mixed petitions, we now turn to the
proper resolution of this case.
In his Report and Recommendation, adopted by the district
court, the magistrate judge sua sponte considered, and
rejected, the possibility of staying Jackson’s mixed habeas
petition. In doing so, the magistrate judge noted that there
were “no extraordinary circumstances that would warrant a
stay” (emphasis added); given that Jackson was aware of the
“allegedly ineffective representation at the time counsel filed
his appellate brief” in state court, there was “no reason why
Jackson could not have raised this constitutional claim in the
state courts prior to presenting it to this Court.”11
[6] Although examination into Jackson’s failure to exhaust
was proper, and indeed, necessary, under Rhines, we hold that
the application of an “extraordinary circumstances” standard
does not comport with the “good cause” standard prescribed
by Rhines. See NLRB v. Zeno Table Co., 610 F.2d 567, 569
(9th Cir. 1979) (distinguishing between the “good cause”
standard found in NLRB regulations and the “extraordinary
circumstances” standard in section 10(e) of the National
Labor Relations Act and noting that “ ‘good cause’ . . .
sarily cumbersome after Rhines, but also the Supreme Court’s recent deci-
sion in Mayle, imposing stricter limitations than previously required by
this court for amendments to relate back to the original filing date, is likely
to make our former approach less useful for petitioners in many instances.
11
In response to Jackson’s subsequent request to hold the proceedings
in abeyance, the magistrate judge issued an order, not adopted by the dis-
trict court, denying the motion. That order repeated that “[n]o valid reason
has been submitted why Petitioner could not have brought the alleged
ineffectiveness of counsel to the attention of the state courts at an earlier
time.”
JACKSON v. ROE 13663
appears to be less stringent than . . . ‘extraordinary circum-
stances’ ”).12
V.
[7] Rhines now makes clear that the district court was
incorrect both in asserting that Jackson’s mixed petition had
to be dismissed and in concluding that a stay was not war-
ranted due to the absence of “extraordinary circumstances.”
Of course, these errors are understandable given the fact that
the proceedings in this case predated the opinion in Rhines by
almost three years. Accordingly, we must remand this case to
the district court to apply Rhines in the first instance. See
Akins v. Kenney, 410 F.3d 451, 456 (8th Cir. 2005) (remand-
ing case to district court to allow petitioner “an opportunity to
demonstrate good cause for his failure to exhaust his claims
first in state court, to show that his unexhausted claims are not
‘plainly meritless,’ and to demonstrate that he has not
engaged in abusive litigation tactics or intentional delay”).
We note that, as petitioner’s counsel recognized at oral
argument, the record does not reflect the current status of
Jackson’s ineffective assistance claim, which was pending
12
This conclusion is not altered by the fact that in his Report, the magis-
trate judge stated that he “presently sees no reason” for Jackson’s failure
to exhaust. This tentative language seemed to invite Jackson to submit his
reasons to the court. Although Jackson did offer a reason in his Objec-
tions, namely that he was not aware of his counsel’s ineffective perfor-
mance until 2000, the district court never addressed whether this
explanation would excuse Jackson’s failure to present his claim to the Cal-
ifornia state courts. Rather, the district court “adopted” the findings and
conclusions of the magistrate judge, thereby adopting the determination
that “no reason” was presented. Furthermore, even if the district court had
addressed Jackson’s proffered reason, he would have done so under the
wrong standard. By adopting the “extraordinary circumstances” test con-
tained in the Report, any evaluation of Jackson’s excuse would have been
improper under Rhines. Accordingly, we need not address whether Jack-
son’s proffered reason would amount to “good cause” sufficient to warrant
a stay. We leave this question for the district court to consider on remand.
13664 JACKSON v. ROE
before the California Supreme Court at the time of his request
for a stay. If this claim has since been exhausted, there may
no longer be a need to stay the proceedings. Instead, the dis-
trict court could consider the ineffective assistance claim,
contained in the traverse, on the merits. In addition, the dis-
trict court may also need to resolve the question of whether
Jackson’s ineffective assistance claim is untimely under
AEDPA or whether it “relates back” to the date of the original
petition under the standards set forth by the Supreme Court in
Mayle. We leave it to the district court to consider these issues
on remand.
VACATED AND REMANDED.