Jackson v. Roe, 02-56210.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation425 F.3d 654
Docket NumberNo. 02-56210.,02-56210.
PartiesFred Jay JACKSON, Petitioner-Appellant, v. Ernest C. ROE, Warden, Respondent-Appellee.
Decision Date23 September 2005
425 F.3d 654
Fred Jay JACKSON, Petitioner-Appellant,
Ernest C. ROE, Warden, Respondent-Appellee.
No. 02-56210.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 11, 2005.
Filed September 23, 2005.

Page 655

Gretchen Fusilier, Carlsbad, CA, 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, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CV-00-11975-DT.

Before: REINHARDT, KOZINSKI, and BERZON, Circuit Judges.


BERZON, Circuit Judge.

Fred Jackson filed a "mixed" 28 U.S.C. § 2254 habeas corpus 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, ___ U.S. ___, 125 S.Ct. 1528, 161 L.Ed.2d 440 (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

Page 656

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 petition enunciated in Rhines — quite understandably, as Jackson's petition was dismissed almost three years prior to the decision in Rhines — we vacate and remand to allow the district court the opportunity to do so.


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 conviction to the California Court of Appeal but did not file a petition 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, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (describing California's unique "original writ" system for habeas corpus review in which petitioners may file new original 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 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 representation and in failing to disqualify himself; or (3) the trial court violated Jackson's due process rights by failing to suspend proceedings pending a hearing on his sanity. Each petition 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 December 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 unexhausted.

The magistrate judge issued his Report and Recommendation on March 7, 2002, recommending that the petition be dismissed 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 also concluded that Jackson's exhausted claims were procedurally defaulted.2 In

Page 657

light of this dual holding, the magistrate judge offered Jackson two options: (1) withdraw the unexhausted 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 Jackson 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 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 exercise the option to withdraw his unexhausted claim, the district judge adopted the Report of the magistrate judge and dismissed 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 certificate of appealability from this Court on December 17, 2002.


Labeled "one of the pillars of federal habeas corpus jurisprudence," the doctrine of exhaustion requires a petitioner to present his claims to a state court for review before seeking relief in federal court. Calderon v. United States District 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, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Act of June 25, 1948, ch. 646, 62 Stat. 869, 967 (codified as amended at 28 U.S.C. § 2254(b)).

Page 658

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 available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant."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 adjudicated by a state court. The Supreme Court adopted a rule of "total exhaustion," requiring that all claims in a habeas petition be exhausted before a federal court can act on the petition.5 Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (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, 102 S.Ct. 1198.

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 alternative 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 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 Calderon 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 inconsistent 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;

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(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...

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