Stephen Putnam v. California Attorney General ( 2020 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
STEPHEN E. PUTNAM, No. 18-15346
Petitioner-Appellant, D.C. No. 2:17-cv-00832-GEB-EFB
v.
MEMORANDUM*
ATTORNEY GENERAL FOR THE
STATE OF CALIFORNIA,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted January 21, 2020
San Francisco, California
Before: W. FLETCHER and R. NELSON, Circuit Judges, and MOLLOY,**
District Judge.
On April 2, 2017, Stephen Putnam (“Petitioner”) filed a § 2254 petition in
the Eastern District of California that contained only unexhausted claims.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
Petitioner’s § 2254 petition alleged: (I) insufficient evidence, (II) ineffective
assistance of trial counsel, (III) prosecutorial misconduct, and (IV) ineffective
assistance of appellate counsel. Petitioner requested a stay and abeyance under
Rhines v. Weber, 544 U.S. 269 (2005), but the district court denied Petitioner’s
motion. Reviewing the district court’s decision for abuse of discretion, id. at 279,
we affirm because Petitioner did not show good cause for his failure to exhaust
state court remedies.
Petitioner raised Claims I, II, and IV in his post-conviction petition in the
California Superior Court before raising them in his § 2254 petition. After the
state trial court denied those claims, Petitioner could have filed a petition with the
California Supreme Court—with precisely the same arguments—which would
have exhausted the claims. See Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir. 2008)
(citing Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir. 1999)). Petitioner did not
do so and has not provided a reasonable explanation for that failure.
Claim III, on the other hand, was not raised in state habeas proceedings.
However, the factual and legal predicate for the claim necessarily existed at least as
early as April 2016, when Petitioner’s direct appeal was filed. Therefore, Claim
III, like the others, could have been presented to the California Supreme Court
prior to the filing of Petitioner’s § 2254 claim, but it was not.
2
Before filing his federal petition, the Petitioner could easily have instead
submitted his arguments to the California Supreme Court, which would have
exhausted his claims. The explanations offered by Petitioner for his failure to
present his claims to the California Supreme Court do not withstand scrutiny. The
district court did not abuse its discretion in denying a stay and abeyance under
Rhines.
AFFIRMED.
3