King v. Ryan

• Decision Date: 05 May 2009
• Docket Number: No. 06-55858.,06-55858.
• Citation: 564 F.3d 1133
• Parties: Jonathan KING, Petitioner-Appellant, v. Stuart J. RYAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

564 F.3d 1133

Jonathan KING, Petitioner-Appellant, v. Stuart J. RYAN, Respondent-Appellee.

No. 06-55858.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2009.

Filed May 5, 2009.

Fay Arfa (argued) of Fay Arfa, A Law Corporation, Los Angeles, CA, for petitioner-appellant King.

David Fredric Glassman (argued) and G. Tracey Letteau of the Office of the California Attorney General, Los Angeles, CA, for respondent-appellee Ryan.

Appeal from the United States District Court for the Central District of California, John F. Walter, District Judge, Presiding. D.C. No. CV-05-03654-JFW.

Before: HAWKINS, MARSHA S. BERZON and RICHARD R. CLIFTON, Circuit Judges.

OPINION

BERZON, Circuit Judge:

Jonathan King appeals from the district court's order dismissing his petition for a writ of habeas corpus. King filed a "mixed" habeas petition in federal court— that is, one including both exhausted and unexhausted claims—just two days before the end of the one-year statute of limitations applicable under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2244(d)(1). King then asked the district court to stay the petition and dismiss his unexhausted claims so that he could exhaust them in state court before adding them back into the stayed federal petition, thereby invoking the three-step procedure outlined by this Court in Kelly v. Small, 315 F.3d 1063 (9th Cir.2003) (hereinafter "the Kelly procedure").

The district court denied King's request. Instead, it ordered King to either abandon his unexhausted claims and proceed with his exhausted claim or dismiss the entire action without prejudice. King did neither. The district court then dismissed King's unexhausted claims and allowed the case to proceed only with respect to King's one remaining fully-exhausted claim.¹ We hold that, in doing so, the district court applied an erroneous legal standard. Contrary to the district court's order, the Kelly procedure remains available after the Supreme Court's decision in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), and unlike the procedure permitted by Rhines, does not require that a petitioner show good cause for his failure to exhaust state court remedies. We nonetheless affirm the dismissal because the error was harmless: as explained below, King fares no better under the Kelly standard we apply today than he did under the district court's analysis.

I.

King is currently serving a 32-year sentence for two counts of attempted second-degree robbery, two counts of second-degree robbery, two counts of assault with a firearm, and one count of willfully evading a pursuing police officer. King unsuccessfully appealed his conviction to the California Court of Appeal and then to the California Supreme Court, which affirmed in an order that became final on May 18, 2004. On May 16, 2005, King filed a habeas petition in U.S. District Court, just two days before the end of AEDPA's one-year limitations period. See 28 U.S.C. § 2244(d)(1).

King's habeas petition acknowledged that nine of his ten claims were unexhausted at the time of filing. On May 18, 2005, King filed a motion appearing to invoke the three-step procedure outlined in Kelly, which affirmed the three-step stay and abeyance procedure first articulated in Calderon v. U.S. Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir.1998). Pursuant to the Kelly procedure, (1) a petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition. Kelly, 315 F.3d at 1070-71; see also Part III infra. Following Kelly's outline, but without citing that case by name, King requested that the district court "dismiss [his] unexhausted claims," and proposed that "after exhausting the new claims in state court," he would return to federal court and "file a First Amended Petition reasserting the previously unexhausted claims."

Later in the same motion, however, King expressly referenced the U.S. Supreme Court's decision in Rhines. Rhines declared that "in limited circumstances," federal district courts have the authority to stay a mixed habeas petition and hold the entire petition—exhausted and unexhausted claims alike—in abeyance while the petitioner returns to state court to exhaust his remedies there. 544 U.S. at 277, 125 S.Ct. 1528; see also Part III infra. The procedure set out in Rhines is less cumbersome for a petitioner than the Kelly procedure, but importantly, it is available only upon a showing that the petitioner had good cause for not exhausting his state claims earlier. 544 U.S. at 277, 125 S.Ct. 1528. Citing Rhines, King's motion asserted that he had demonstrated good cause for his failure fully to exhaust his petition, and asked that the district court exercise its discretion to "stay the petition pending exhaustion."

In other words, King proposed two different approaches to his mixed petition: one (Kelly) which would not require good cause but also would not leave the entire mixed petition pending in district court, and a second (Rhines) which would require a good cause showing and would leave the entire mixed petition pending in district court.

On May 24, 2005, before the district court ruled on his motion, King filed a state habeas petition in Los Angeles County Superior Court, raising all nine of his unexhausted claims. After the Superior Court denied the petitions and King's state court appeal failed, King petitioned for review to the California Supreme Court. While the state habeas proceedings were pending, the magistrate judge assigned to King's federal habeas case issued a Report and Recommendation (R & R) in which he recommended denying King's request for a stay and also recommended that King be ordered to either delete all nine of his unexhausted claims and proceed with his one exhausted claim or dismiss the entire petition and file a new petition after exhausting his state court remedies. The magistrate judge discussed the requirements outlined in Rhines and determined that King had not demonstrated "good cause" for failure to exhaust nine of his ten claims. The R & R contained no discussion of the alternative Kelly procedure.

King filed an objection to the magistrate judge's R & R, arguing that he did have good cause for his failure to exhaust his state remedies. On October 7, 2005, the district court adopted the magistrate judge's R & R. Unlike the magistrate judge, the district court recognized that King's motion most clearly tracked the three-step stay-and-abeyance procedure outlined in Kelly, and it proceeded to analyze the motion under that rubric. The district court held, however, that Rhines's good cause standard applies to the Kelly procedure as well, reasoning that both Kelly and Rhines are directed at solving the same problem—namely, the interplay between AEDPA's one-year statute of limitations and the total exhaustion requirement first articulated in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). See Part II infra. The district court then rejected King's good cause argument.

In addition, the court stated, "even assuming the[Rhines] good cause standard does not apply to the Ninth Circuit's three step procedure [outlined in Kelly], it is not at all clear that the [Kelly] procedure benefits petitioner." The court provided two related reasons why that might be so: First, at the time King requested a stay, the one-year limitations period had already run, so King could not possibly exhaust his claims in state court and return to federal court in time to file his claims. Second, "the recent Supreme Court decision in Mayle v. Felix, [545 U.S. 644, 125 S.Ct. 2562 (2005)], might significantly limit [King's] ability to have his amended claims `relate back' to the filing of the original petition," making it problematic for King to add them to his petition after the one-year period expired. (Internal citations and quotation marks omitted.)² The court concluded that either way, "it appears the better approach for petitioner would have been to seek a stay of the mixed Petition (i.e., the Rhines approach) instead of seeking to follow the [Kelly] three-step approach."

Denying King's motion to stay the petition and dismiss the unexhausted claims, the district court ordered King to file within five days either a notice of abandonment of the unexhausted claims or a request to dismiss the entire action without prejudice. The district court's order went on to state that "[i]f no written response is received within five days of the filing date of this Order, ... the Court will dismiss the unexhausted claims and order further proceedings with respect to the one exhausted claim in the Petition." King did not respond to the district court's order, and on November 2, 2005, the district court dismissed the unexhausted claims and referred the matter back to the magistrate judge for adjudication of the one remaining, exhausted claim.

That same day, approximately forty minutes before the district court's order was filed, the California Supreme Court denied King's petition for review on the merits, at which point the nine previously-unexhausted claims were fully exhausted. King promptly filed a motion for reconsideration with the district court, drawing the district court's attention to the California Supreme Court's ruling. The district court denied King's motion for reconsideration, explaining that its decision to deny King's motion to stay his petition was final as of October 7, 2005, and that the California Supreme Court's ruling therefore came too late to salvage the nine originally unexhausted claims.

King next requested leave to file an amended habeas petition with the district court which...