Mena v. Long

• Decision Date: 17 February 2016
• Docket Number: No. 14–55102.,14–55102.
• Citation: 813 F.3d 907
• Parties: Armando J. MENA, aka A.J. Mena, Petitioner–Appellant, v. David A. LONG, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

813 F.3d 907

Armando J. MENA, aka A.J. Mena, Petitioner–Appellant,

v.David A. LONG, Respondent–Appellee.

No. 14–55102.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 21, 2015.

Filed Feb. 17, 2016.

Michael Parente (argued), Deputy Federal Public Defender; Hilary Potashner, Acting Federal Public Defender, Federal Public Defender's Office, Los Angeles, CA, for Petitioner–Appellant.

Daniel Hilton (argued), Deputy Attorney General; Kevin Vienna, Supervising Deputy Attorney General; Julie Garland, Senior Assistant Attorney General; Kamala D. Harris, Attorney General of California, Office of the Attorney General, San Diego, CA, for Respondent–Appellee.

Before: JOHNNIE B. RAWLINSON and JACQUELINE H. NGUYEN, Circuit Judges and MICHAEL A. PONSOR,^* Senior District Judge.

OPINION

NGUYEN, Circuit Judge:

The Supreme Court held in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), that a district court has discretion to stay, rather than dismiss, a timely-filed "mixed" petition for habeas corpus relief—that is, a single petition that includes both exhausted and unexhausted claims. Today we join several of our sister circuits in holding that the Rhines stay-and-abeyance procedure is not limited to mixed petitions, and a district court may stay a petition that raises only unexhausted claims. Because the district court here held otherwise, we reverse and remand.

I.

Petitioner Armando Mena received a 40–year prison sentence after pleading guilty to five counts of lewd and lascivious acts by use of force for sexually abusing his stepdaughters and their cousin. Mena filed a notice of appeal and a request for certificate of probable cause challenging the validity of his plea, asserting that his counsel had given him defective advice concerning his plea and sentence. The state trial court granted the request for certificate of probable cause.

On direct appeal, Mena's appointed counsel filed a brief under People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979), and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), setting forth a statement of facts but identifying no potential arguable issues. The California Court of Appeal invited Mena to file a personal supplemental brief, but Mena failed to do so. The California Court of Appeal then conducted an independent review of the entire record, found no arguable issues, and issued an opinion affirming the judgment of the trial court.

Mena next filed a state habeas petition in the California Supreme Court alleging ineffective assistance of trial and appellate counsel. The California Supreme Court denied the petition in a one-sentence opinion citing People v. Duvall, 9 Cal.4th 464, 37 Cal.Rptr.2d 259, 886 P.2d 1252, 1258 (1995), and In re Swain, 34 Cal.2d 300, 209 P.2d 793, 796 (1949), indicating that Mena had failed to "state fully and with particularity the facts on which relief is sought." Duvall, 37 Cal.Rptr.2d 259, 886 P.2d at 1258 ; Swain, 209 P.2d at 796.

Proceeding to federal court, Mena next filed a timely pro se petition under 28 U.S.C. § 2254 in the Central District of California. Noting various deficiencies in the petition, the district court issued an order appointing counsel for Mena and dismissing the petition without prejudice. The court noted that all of Mena's claims appeared to be unexhausted because the California Supreme Court denied his state habeas petition without reaching the merits. About eight months later, but still within the limitations period, Mena filed his First Amended Petition, raising four constitutional claims which he conceded were unexhausted, while at the same time moving for a stay under Rhines v. Weber so he could exhaust those claims in state court.¹

The magistrate judge issued a Report and Recommendation recommending that the district court deny Mena's request for a Rhines stay and dismiss his petition without prejudice. The magistrate judge reasoned that the case was "not an appropriate case for invocation of the stay-and-abeyance procedure authorized by Rhines because that procedure applies only to mixed petitions and petitioner here has conceded that the operative [petition] is not a mixed petition." The district court adopted the Report and Recommendation in full and denied Mena's request for a Rhines stay.

We granted a certificate of appealability on "whether the district court properly denied appellant's request for a stay, including whether the district court has discretion to use the stay and abeyance procedure outlined in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005), and Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), to stay and hold in abeyance a habeas petition containing only unexhausted claims."

II.

Generally, a habeas petition under 28 U.S.C. § 2254 may "not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State...." 28 U.S.C. § 2254(b)(1). Over thirty years ago, the Supreme Court interpreted this provision to require district courts to dismiss petitions that contain even one unexhausted claim. Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Importantly, however, "Lundy was decided at a time when petitioners could return to federal court after exhausting their unexhausted claims to ‘present their perfected petitions with relative ease,’ as there was no statute of limitations on filing federal habeas petitions." Doe v. Jones, 762 F.3d 1174, 1177 (10th Cir.2014) (quoting Rhines, 544 U.S. at 274, 125 S.Ct. 1528 ). Then came the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which "dramatically altered the landscape" by establishing a one-year statute of limitations for such petitions. Rhines, 544 U.S. at 274, 125 S.Ct. 1528. Because of AEDPA's brief limitations period, petitioners who brought unexhausted claims to federal court faced the possibility that they would have insufficient time to exhaust those claims in state court then return to federal court. The Supreme Court confronted this issue in Rhines v. Weber, where it held that under certain circumstances district courts may stay and hold in abeyance mixed petitions to allow petitioners to exhaust their unexhausted claims without losing their place in federal court. Id. at 275–77, 125 S.Ct. 1528.

We have not addressed in our circuit whether such a stay-and-abeyance procedure is available when a petition is fully unexhausted, not mixed. But our sister circuits—the Third, Seventh, and Tenth—that have done so have all held that Rhines applies to a petition that includes solely unexhausted claims. See Doe, 762 F.3d at 1174 ; Heleva v. Brooks, 581 F.3d 187, 191 (3d Cir.2009) ; Dolis v. Chambers, 454 F.3d 721, 724 (7th Cir.2006). We agree.

Like the Supreme Court's analysis in Rhines, our analysis begins with the general principle that "[d]istrict courts do ordinarily have authority to issue stays where such a stay would be a proper exercise of discretion." Rhines, 544 U.S. at 276, 125 S.Ct. 1528 (citations omitted). As the Court recognized, AEDPA does not eliminate district courts' authority to issue stays in habeas proceedings, but rather—at least in cases of mixed petitions—limits it to when "the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. at 278, 125 S.Ct. 1528. Similarly here, we find no authority eliminating the district courts' presumed discretion to issue stays in cases of fully unexhausted petitions, and we find no reason to adopt limits on that discretion different from those set forth in Rhines.

Indeed, this application of Rhines is supported, if not required, by statements in other Supreme Court cases suggesting that petitioners with fully unexhausted petitions can seek stays. Just one month after deciding Rhines, the Court considered in Pace v. DiGuglielmo whether AEDPA's one-year statute of limitations is tolled when a petitioner files an untimely petition in state court. Holding that the statute is not tolled, the Court added:

A prisoner seeking postconviction relief might avoid this predicament ... by filing a "protective" petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.... 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, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Notably, the petition in Pace was not mixed, and the Court gave no indication that its statement applied only to mixed petitions. Heleva, 581 F.3d at 191. It would be odd, to say the least, for the Supreme Court to suggest a stay procedure to a petitioner who could not have used it, and to "recommend[ ] this course of action without any mention that it could apply only to a mixed petition." Id. We can only conclude that the Court expected Rhines to apply to fully unexhausted petitions.² AccordId.

The state argues that because Rhines concerned a mixed petition, the pre-AEDPA rule established in Rose v. Lundy continues to govern fully unexhausted petitions, and mandates dismissal. But the state's argument not only begs the question of whether Rhines was in fact limited to mixed petitions, it also ignores the context of Lundy. When Lundy was decided, there was no need for the stay procedure set forth in Rhines —AEDPA's one-year statute of limitations had not yet been enacted. Rhines, 544 U.S. at 274, 125 S.Ct. 1528. Not only that, the dismissal mandated in Lundy achieved the same result as the stay procedure in Rhines —petitioners could exhaust their claims in state court then return to federal court. Against this backdrop, it is clear that Lundy did not address, let alone foreclose, the use of a stay-and-abeyance...