Wooten v. Kirkland

• Citation: 540 F.3d 1019
• Decision Date: 26 August 2008
• Docket Number: No. 06-56575.,06-56575.
• Parties: James D. WOOTEN, Petitioner-Appellant, v. R. KIRKLAND, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

540 F.3d 1019

James D. WOOTEN, Petitioner-Appellant, v. R. KIRKLAND, Warden, Respondent-Appellee.

No. 06-56575.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 3, 2008.

Filed August 26, 2008.

Jeffrey D. Price, Santa Monica, CA, for the petitioner-appellant.

Carl N. Henry, Deputy Attorney General for the State of California, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding. D.C. No. CV-05-06674-RSWL(RZ).

Before: WILLIAM C. CANBY, JR., JAY S. BYBEE, and MILAN D. SMITH, JR., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:

Petitioner-Appellant, James Wooten, was convicted of murder in the first degree in California state court. After unsuccessful direct appeals, Wooten petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Central District of California. The district court dismissed Wooten's petition because of his failure to exhaust all issues that were the subject of the petition. Wooten appeals the district court's dismissal claiming, among other things, that he was entitled to a stay of his petition under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), because he had "good cause" for his failure to exhaust. Specifically, Wooten argues that he was "under the impression" that his counsel had included all the issues raised before the California Court of Appeal in his petition to the California Supreme Court. We affirm.

FACTS AND PROCEDURAL BACKGROUND

A. Direct Appeal

Wooten appealed his conviction for felony murder to the California Court of Appeal. In his opening brief, Wooten, who was represented by counsel, argued that the trial court erred by admitting evidence of other crimes, failing to disclose evidence relating to third-party culpability, not issuing a jury instruction on third-party culpability, and because there was insufficient evidence to establish that a robbery occurred. Wooten also claimed cumulative error.¹ The California Court of Appeal denied Wooten's cumulative error claim, affirmed Wooten's conviction and sentence, and modified the judgment to reflect that the murder was committed during an attempted robbery.

Wooten then filed for review in the California Supreme Court. In that petition, Wooten disputed the California Court of Appeal's finding that there was sufficient evidence to support an attempted robbery, and raised three other issues "to exhaust state remedies for federal habeas corpus purposes." Wooten did not raise his cumulative error claim, but his petition requested review "[f]or all of the reasons given herein and in the briefs to the Court of Appeal." The California Supreme Court denied review without explanation, and the United States Supreme Court denied certiorari.

B. Habeas Proceedings

Wooten filed his first amended petition for habeas corpus on October 5, 2005. Kirkland moved to dismiss Wooten's petition on the basis that Wooten had not exhausted his cumulative error claim before the California Supreme Court. Wooten, who was not represented by counsel, opposed the motion, claiming that he was "under the impression that all issues were properly exhausted" and that his counsel on direct appeal never advised him that any issues were not exhausted. He argued further that cumulative error "is an issue which governs the whole record of the Trial proceedin[g]s." Wooten also requested a stay or a continuance so that he could exhaust his cumulative error claim if the court concluded that claim was not exhausted.

In a recommendation to the district court, the magistrate judge stated that Wooten had many options at that juncture, "including: (1) allowing dismissal of the Petition; (2) proceeding on the exhausted claims by filing [an amended petition] deleting unexhausted claims and containing only the exhausted claims . . .; and (3) pursuing a stay of the Petition in order to return to state court to exhaust his unexhausted claim." The magistrate judge recommended that the district court dismiss the petition as partially exhausted.

Shortly thereafter, Wooten filed a motion for stay and abeyance so that the California Supreme Court could consider the habeas petition addressing his cumulative error claim, which Wooten filed after Kirkland filed its motion to dismiss. The magistrate judge recommended that the district court deny Wooten's motion because he had not shown "good cause" for his failure to exhaust. Wooten objected and filed a further motion against dismissal, arguing that the cumulative error claim was "so intertwined with every issue raised" before the California Supreme Court that it was exhausted. The district court denied Wooten's motion for stay and abeyance.

The magistrate judge filed a final report and recommendation suggesting that the district court dismiss the habeas petition as "mixed" without prejudice to Wooten filing a petition with only the exhausted claims. The magistrate judge noted that the court had twice informed Wooten that he could proceed with the exhausted claims by amending his petition, and that Wooten had not filed an amended petition. Wooten again objected to the conclusion that his cumulative error claim was not exhausted and requested that the district court retain jurisdiction over all claims it deemed exhausted. The district court dismissed Wooten's habeas petition.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the dismissal of a habeas petition under 28 U.S.C. § 2253(a). We review the dismissal of a mixed habeas petition de novo. Robbins v. Carey, 481 F.3d 1143, 1146 (9th Cir.2007). We also review whether a petitioner failed to exhaust state court remedies de novo. Cook v. Schriro, 516 F.3d 802, 816 (9th Cir.2008). A district court's grant or denial of a stay is subject to abuse of discretion review. Jackson v. Roe, 425 F.3d 654, 656 (9th Cir.2005).

DISCUSSION

A. The District Court Did Not Abuse Its Discretion in Denying Wooten's Motion to Stay His Mixed Petition.

Under 28 U.S.C. § 2254(b)(1)(A), the federal courts are not to grant a writ of habeas corpus brought by a person in custody pursuant to a state court judgment unless "the applicant has exhausted the remedies available in the courts of the State." This exhaustion requirement is "grounded in principles of comity" as it gives states "the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

In Rhines, however, the Supreme Court held that a district court is permitted to stay a mixed petition—a petition containing both exhausted and unexhausted claims—in "limited circumstances," so that a petitioner may present his unexhausted claims to the state court without losing his right to federal habeas review due to the relevant one-year statute of limitations. 544 U.S. at 273-75, 277-78, 125 S.Ct. 1528 (explaining how the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which imposed a one-year statute of limitations on the filing of federal petitions, affected the Court's analysis of mixed petitions). Rhines states that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 277, 125 S.Ct. 1528. Under Rhines, a district court must stay a mixed petition only if: (1) the petitioner has "good cause" for his failure to exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics. Id. at 278, 125 S.Ct. 1528.

Wooten argues that he was entitled to a stay under Rhines so that he could exhaust his cumulative error claim. We hold that the district court did not abuse its discretion in concluding that Wooten did not have "good cause" for failing to exhaust his cumulative error claim. As a result, we need not reach the other two factors in the Rhines test.

In Jackson, we stated that "good cause" for failure to exhaust does not require "extraordinary circumstances." 425 F.3d at 661-62. But as the Jackson court recognized, we must interpret whether a petitioner has "good cause" for a failure to exhaust in light of the Supreme Court's instruction in Rhines that the district court should only stay mixed petitions in "limited circumstances." Id. at 661. We also must be mindful that AEDPA aims to encourage the finality of sentences and to encourage petitioners to exhaust their claims in state court before filing in federal court. Rhines, 544 U.S. at 276-77, 125 S.Ct. 1528. To conclude, in this case, that Wooten had "good cause" for his failure to exhaust would conflict with the Supreme Court's guidance in Rhines and disregard the goals of AEDPA.

Wooten explains his failure to exhaust his cumulative error claim by stating that he was "under the impression" that his counsel included all of the issues raised before the California Court of Appeal in his petition before the California Supreme Court.² To accept that a petitioner's "impression" that a claim had been included in an appellate brief constitutes "good cause" would render stay-and-obey orders routine. Indeed, if the court was willing to stay mixed petitions based on a petitioner's lack of knowledge that a claim was not exhausted, virtually every habeas petitioner, at least those represented by counsel, could argue that he thought his counsel had raised an unexhausted claim and secure a stay. Such a scheme would run afoul of Rhines and its instruction that district courts should only stay mixed petitions in "limited circumstances." Id. at 277, 125 S.Ct. 1528.

Additionally, were we to endorse such a broad interpretation of "good cause" that allowed for routine stays of mixed petitions, ...