Dixon v. Baker

• Decision Date: 02 February 2017
• Docket Number: No. 14-16644,14-16644
• Citation: 847 F.3d 714
• Parties: Terry D. DIXON, Petitioner–Appellant, v. Renee BAKER, Warden; Nevada Attorney General, Respondents–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

847 F.3d 714

Terry D. DIXON, Petitioner–Appellant,

v.Renee BAKER, Warden; Nevada Attorney General, Respondents–Appellees.

No. 14-16644

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 18, 2016, San Francisco, California

Filed February 2, 2017

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.

Karen A. Whelan (argued), Deputy Attorney General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents–Appellees.

Before: Alex Kozinski, Ronald Lee Gilman,^* and Michelle T. Friedland, Circuit Judges.

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 postconviction 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 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 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 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, 102 S.Ct. 1198, 71 L.Ed.2d 379 (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, 6 S.Ct. 734, 29 L.Ed. 868 (1886). Adhering to this doctrine thus "protect[s] the state courts' role in the enforcement of federal law and prevent[s] disruption of state judicial proceedings." Lundy , 455 U.S. at 518, 102 S.Ct. 1198.

In 1982, the Supreme Court held that "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Id. at 522, 102 S.Ct. 1198. Such a petition is typically called a "mixed petition." Id. at 510, 102 S.Ct. 1198. 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, 102 S.Ct. 1198.

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, 125 S.Ct. 1528, 161 L.Ed.2d 440 (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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (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, 121 S.Ct. 2120, 150 L.Ed.2d 251 (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 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, 102 S.Ct. 1198, 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, 125 S.Ct. 1528. Alternatively, if a stay is deemed inappropriate, the district court must "allow the petitioner to...