Armando Mena v. David Long , 813 F.3d 907 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO J. MENA, AKA A. J. Mena, No. 14-55102
Petitioner-Appellant,
D.C. No.
v. 5:13-cv-00490-
CJC-RNB
DAVID A. LONG,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
October 21, 2015—Pasadena, California
Filed February 17, 2016
Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen,
Circuit Judges and Michael A. Ponsor, * Senior District
Judge.
Opinion by Judge Nguyen
*
The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
2 MENA V. LONG
SUMMARY **
Habeas Corpus
Reversing the district court’s dismissal of a state
prisoner’s habeas corpus petition raising only unexhausted
claims, the panel held that a district court has discretion to
stay and hold in abeyance fully unexhausted habeas petitions
under the circumstances set forth in Rhines v. Weber, 544
U.S. 269 (2005).
Because the district court dismissed the petition on the
assumption that it lacked authority to grant the petitioner’s
request for a Rhines stay, the panel remanded for the district
court to decide in the first instance whether the petitioner is
entitled to such a stay.
COUNSEL
Michael Parente (argued), Deputy Federal Public Defender;
Hilary Potashner, Acting Federal Public Defender, Federal
Public Defender’s Office, Los Angeles, California, 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, California, for Respondent-
Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MENA V. LONG 3
OPINION
NGUYEN, Circuit Judge:
The Supreme Court held in Rhines v. Weber, 544 U.S.
269 (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, 600 P.2d 1071 (Cal. 1979), and
Anders v. California, 386 U.S. 738 (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.
4 MENA V. LONG
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,
886 P.2d 1252, 1258 (Cal. 1995), and In re Swain, 209 P.2d
793, 796 (Cal. 1949), indicating that Mena had failed to
“state fully and with particularity the facts on which relief is
sought.” Duvall, 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
1
Mena does not dispute the district court’s conclusion that his claims
were unexhausted, and thus we do not review that issue.
MENA V. LONG 5
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 (2005), and Pace v. DiGuglielmo, 544 U.S. 408(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 (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). 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. 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
6 MENA V. LONG
in abeyance mixed petitions to allow petitioners to exhaust
their unexhausted claims without losing their place in federal
court. Id. at 275–77.
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 (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. 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
MENA V. LONG 7
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 (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 Accord Id.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
2
At least one other Supreme Court case provides similar indications.
See Gonzalez v. Thaler, 132 S.Ct. 641, 655 (2012) (“To the extent a
petitioner has had his or her federal filing period severely truncated by a
delay in the [state appellate court] mandate’s issuance and has
unexhausted claims that must be raised on state habeas review, such a
petitioner could file a request for a stay and abeyance from the federal
district court.”).
8 MENA V. LONG
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. 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
procedure.
Moreover, even setting aside the Supreme Court’s
statement in Pace, we do not find the distinctions between
mixed petitions and fully unexhausted petitions sufficiently
meaningful to warrant different treatment. In both cases,
petitioners who are denied stays run the risk of forever losing
federal review of their claims. We find unpersuasive the
state’s claim that different treatment is nonetheless justified
because mixed petitions, unlike fully unexhausted ones,
demonstrate that petitioners at least attempted to pursue state
remedies. Even accepting the premise as true, the test set
forth in Rhines better addresses this concern by ensuring that
a stay is granted only when the petitioner shows, among
other things, “good cause for his failure to exhaust.” Rhines,
544 U.S. at 278; see also Doe, 762 F.3d at 1181 (“Whether
they have mixed or unmixed petitions, petitioners with little
chance of exhausting their claims in state court and returning
to federal court before the limitations period runs should not
be foreclosed from the very mechanism designed to protect
against such risk if they can satisfy the Rhines standards.”).
Denying stays to all petitioners with fully unexhausted
petitions, without regard to good cause excusing a failure to
exhaust, creates a needlessly overbroad rule.
MENA V. LONG 9
Finally, the state cites Rasberry v. Garcia, 448 F.3d 1150(9th Cir. 2006), but that opinion does not dictate a different
result. In Rasberry, the district court had dismissed the
petitioner’s first petition because it contained only
unexhausted claims, then, when the petitioner re-filed his
petition after exhausting those claims, dismissed the second
petition as untimely. Id. at 1152–53. On appeal, the
petitioner argued that the district court erred in denying him
equitable relief—such as equitable tolling or relation back of
his filing date—before dismissing his second petition.
According to the petitioner, he was entitled to such relief
because the district court failed to inform him before
dismissing his first petition that he could amend the petition
to include two exhausted claims he had omitted and then
seek a stay. Id. at 1151. Rejecting the petitioner’s argument,
we reasoned that it would be “unworkable” to require the
district court to intuit that the petitioner had excluded
exhausted claims from his petition, then to advise him to add
those claims and seek a stay from the court:
District courts have the discretion to hold a
mixed petition in abeyance pending
exhaustion of the unexhausted claims.
Rhines v. Weber, 544 U.S. 269, 125 S.Ct.
1528, 1535, 161 L.Ed.2d 440 (2005). We
decline to extend that rule to the situation
where the original habeas petition contained
only unexhausted claims, but the record
shows that there were exhausted claims that
could have been included. Such an extension
would result in a heavy burden on the district
court to determine whether a petitioner who
files a petition that on its face is unexhausted
10 MENA V. LONG
may have other exhausted claims that could
have been raised.
Id. at 1154.
As the Tenth Circuit correctly noted, our statement in
Rasberry, “read in light of the case’s factual context,”
concerned only the limited question of whether the district
court must inform petitioners that an amendment-and-stay
procedure may be available, not the broader question of
whether Rhines applies to fully unexhausted petitions. See
Doe, 762 F.3d at 1180. Indeed, the district court proceedings
were before Rhines was decided, and thus the petitioner
neither requested a Rhines stay nor argued on appeal that
Rhines applied to fully unexhausted petitions. Addressing
only the arguments actually presented, we thus assumed
without deciding that Rhines was limited to mixed petitions.
In short, we did not confront the issue presented here. See
Heleva, 581 F.3d at 192 (noting that Rasberry “was focused
on the issue of mixed petitions”); see also Doe, 762 F.3d at
1180 (“In light of Rasberry’s request for a notice
requirement, the Ninth Circuit declined to apply Rhines to
the petition before it . . . .”). Thus Rasberry does not control
the present case. 3
III.
In sum, we hold that a district court has the discretion to
stay and hold in abeyance fully unexhausted petitions under
the circumstances set forth in Rhines. Because the district
court here dismissed the petition on the assumption that it
3
To the extent our stray language in Rasberry might be interpreted to
suggest otherwise, it is nevertheless not binding. See United States v.
Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (noting that a ruling
becomes the law of the circuit when resolved “after reasoned
consideration”).
MENA V. LONG 11
lacked authority to grant Mena’s request for a Rhines stay,
we reverse and remand for it to decide in the first instance
whether Mena is entitled to such a stay.
REVERSED AND REMANDED.