by Kent Russell
This column provides “habeas hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.
“Stay and Abeyance”
Recent habeas corpus law prohibits federal judges who are considering habeas petitions from relying on any facts that were not already developed and exhausted in state court. Hence, and because there is often uncertainty as to what degree statutory tolling will be granted in federal court after state habeas corpus litigation has come to an end, it is becoming much harder for habeas corpus litigants to confidently complete the exhaustion of all potentially viable habeas corpus claims before the AEDPA’s statute of limitations runs out.
This has created a dilemma that can only be managed effectively by getting a solid grip on the new procedure known as “Stay and Abeyance” – a term which is applied to a federal habeas corpus petition that is temporarily stayed (frozen in time) and abeyed (held in suspension) while the petitioner returns to state court to present one or more habeas corpus claims that were not previously exhausted (i.e., presented to the state’s highest court and denied on the merits).
The opportunity and the need for Stay and Abeyance arises when a petitioner files a “mixed” federal habeas corpus petition – that is, a petition that contains one or more exhausted claims along with one or more unexhausted claims. A federal court is prohibited by law from entertaining any habeas petition that has not been completely exhausted. Therefore, faced with a mixed petition, a district court judge has two principal alternatives.
The first is to formally notify the petitioner of the problem, and allow the petitioner to permanently remove the unexhausted claims and go forward with just the exhausted ones. But this option is of no use to a petitioner who believes that the unexhausted claims are as strong as or stronger than the exhausted ones, and therefore does not want to throw them away.
The other option for the court is to dismiss the entire petition “without prejudice,” which theoretically allows the petitioner to re-file the petition in federal court after the petitioner has returned to state court to complete exhaustion. As a practical matter, however, this is a Catch-22 trap, because: (a) AEDPA imposes a one-year statute of limitations on federal habeas corpus petitions; (b) The one-year period continues to run out after a dismissal without prejudice; and (c) It will very likely take more than whatever time remains of that one year to go back to state court and complete exhaustion before returning to federal court. As a result, by the time the petitioner completes exhaustion and comes back to federal court to file a petition containing the newly-exhausted claims, that petition will almost certainly be barred by the AEDPA’s statute of limitations.
This “gotcha” scenario as applied to mixed petitions was recognized as a legitimate dilemma by the Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005). On the one hand, the Court recognized that there could be good reasons why a federal habeas corpus petitioner might not have been able to exhaust all potentially meritorious habeas corpus claims before the one-year statute of limitations ran out, and that it was fundamentally unfair to force such a petitioner to choose between dismissing those legitimate claims or suffering a dismissal of the entire petition. Nevertheless, the Supreme Court did not want to write habeas litigants a blank check that excused any delays in developing claims that could and should have been avoided by exercising due diligence. Therefore, Rhines held that the federal courts have discretion to grant Stay and Abeyance, but only in “limited circumstances.” Specifically, a U.S. District Court can only grant Stay and Abeyance where the petitioner (1) has “good cause” for his failure to exhaust and (2) has unexhausted claims that are not “plainly meritless.”
The latter requirement is relatively easy to satisfy, because any habeas claim worth bringing is going to have some legitimate basis in law and fact, and therefore will almost surely pass the “not-plainly-meritless” test. The more demanding requirement for Stay and Abeyance – and the one that in almost all cases will be the focal point when the court decides whether or not to grant Stay and Abeyance – is the requirement of “good cause.”
Looking to the applicable law on good cause, the Supreme Court has not provided much guidance. Rhines did not define the term or attempt to set out specific factual patterns that would or would not suffice. And a subsequent case, Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), merely states that “a petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file a protective petition in federal court.” Essentially this language means that a petitioner who has acted with “reasonable diligence” and is “reasonably confused” about whether a pending state court exhaustion petition will or won’t be denied on the merits can establish good cause for Stay and Abeyance. However, that does not define what “reasonable diligence” means, or what level of confusion is “reasonable.”
As for the circuit courts, a few cases have addressed the issue of good cause under Rhines. However, even though the results are encouraging, the cases mostly define what is not required to show good cause. For example, the Ninth Circuit has held that good cause does not require a petitioner to show the “extraordinary circumstances” required to obtain equitable tolling. Jackson v. Roe, 425 F.3d 654 (9th Cir. 2005). And in Blake v. Baker, 745 F.3d 977 (9th Cir. 2014), the court held that the good cause requirement is “no more demanding” than the test for ineffective assistance (“IAC”) by habeas counsel set forth in Martinez v. Ryan, 132 S.Ct. 1309 (2012), which allows relief from procedural default where initial habeas counsel failed to discover, investigate or present to the state courts the facts on which a habeas corpus claim is based. Significantly, however, Blake did not decide whether some “lesser showing” than IAC will suffice for Stay and Abeyance.
As regards the district courts, several within the Ninth Circuit have come up with competing standards, ranging from a very demanding test – that the failure to exhaust was due to “an objective factor external to the petitioner which cannot be attributed to him or her” – to a much more forgiving one that only requires the petitioner to show “that he was prevented from raising the claim, either by his own ignorance or confusion about the law or the status of his case, or by circumstances over which he had little or no control.” See Riner v. Crawford, 415 F.Supp.2d 1207 (D.Nev. 2006). It is beyond the scope of this column to survey all the other federal circuits, but undoubtedly there will be a similar split of authority and it will be up to the petitioner to argue for a test as generous as the one cited in Riner, and to provide factual reasons for the delay in exhaustion that are as specific and persuasive as possible.
With this in mind, although each case will of course have its own unique fact patterns, some reasons to consider when attempting to show good cause include: the refusal of appointed appellate counsel to bring a companion habeas corpus petition alleging facts outside the record, such as IAC; failure of appellate counsel to fully explain the AEDPA’s statute of limitations and how to deal with it; a prisoner’s lack of funds to hire private habeas counsel; if private counsel was retained for habeas corpus, unexplained delays or ineffectiveness by that lawyer; the prison’s failure to provide legal materials relevant to habeas corpus; the prison’s inability or refusal to provide ready access to a telephone or other means necessary to conduct post-conviction investigation; long prison lockdowns; newly discovered evidence that did not come to light during the trial or direct appeal; sluggish or unproductive jailhouse lawyering; etc.
1. In order to have a mixed petition in the first place, you will need at least one habeas corpus claim that has been argued and properly exhausted on direct appeal. Therefore, while the direct appeal is proceeding, make sure that your appellate lawyer is advancing at least one claim based on the U.S. Constitution (e.g., a due process violation under the 5th and 14th Amendments), and is exhausting that claim in the state’s highest court. In all likelihood, competent appellate lawyers will do this on their own, but if they don’t, make a written demand that they do so.
2. After the direct appeal is over, do the best you can, using the resources available to you, to investigate and develop unexhausted habeas corpus claims (the most common one being IAC by trial counsel), and to properly exhaust them in the state courts.
3. If, for whatever reason (see, e.g., the list of possible reasons at the end of the main section above), you have doubts about whether you are going to be able to fully exhaust all your previously unexhausted claims before the AEDPA’s statute of limitations runs out, then before the AEDPA time period elapses, file a mixed petition in federal court that contains at least one of the exhausted claims from the direct appeal, along with your as-yet unexhausted claims. When you draft the petition, make clear which claims are exhausted and which are unexhausted.
4. Expect that: (a) The Attorney General will move to dismiss your petition because it is a mixed petition; and/or (b) The court will send you a notice that your petition is mixed and order you to elect one of several options. Either way, respond by requesting that the court grant Stay and Abeyance under Rhines v. Weber, and support your request with citations to the law summarized above and a factual declaration establishing, as specifically and persuasively as you can, good cause for failing to previously complete exhaustion.
What not to do
1. Do not stipulate to the Magistrate Judge making final and dispositive rulings in your case. In districts which use Magistrate Judges (i.e., most of them), you will be asked whether you will enter into a stipulation permitting the Magistrate Judge to make final decisions in lieu of the district court judge. Don’t do it. Recent case law holds that the decision whether or not to grant Stay and Abeyance is so crucial to the outcome of the case that the Magistrate Judge lacks the power to make that call. See, e.g., Mitchell v. Valenzuela, 791 F.3d 1166 (9th Cir. 2015). Hence, if you don’t sign the stipulation you can force the district court judge to make the ruling on Stay and Abeyance, and if it goes against you, you can file Objections and, if those are denied, you can then appeal.
2. Be very reluctant to accept a stay other than Stay and Abeyance pursuant to Rhines. Prior to Rhines, the circuit courts offered a petitioner filing a mixed petition an option involving a different kind of stay than Stay and Abeyance – one commonly known as “Withdrawal and Abeyance” or, in the Ninth Circuit, a “Kelly Stay.” See, e.g., Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). This kind of stay permits the petitioner to withdraw the unexhausted claims and file an amended petition containing just the exhausted ones. The case is then stayed while the petitioner is permitted to go back to state court and exhaust. When exhaustion is completed, the petitioner comes back to federal court and files a motion to amend the existing petition to add in the now-exhausted claims.
The advantage of this option is that it doesn’t require any showing of good cause, which is required for a Rhines stay. But there is a HUGE problem: The newly exhausted claims cannot successfully be added back into the petition unless the petitioner can show they “relate back” to the unexhausted claims that were previously stayed. And that test cannot be satisfied where the new claims rest on facts that are different from those upon which the old claims are based – such as, for example, an IAC claim, which necessarily depends on facts that were not in the record at the time of the direct appeal. Thus, Stay and Withdrawal usually does nothing to protect newly-exhausted habeas claims based on new facts – normally the strongest habeas claims. In short, a petitioner accepting Withdrawal and Abeyance will usually wind up no better off than if he or she had dismissed the unexhausted claims in the first place.
Kent A. Russell specializes in habeas corpus and is the author of the California Habeas Handbook, which thoroughly explains state and federal habeas corpus under AEDPA. The brand new 6th Edition, completely revised in 2015, is now available. For the cost of the latest edition, check Kent’s website – www.russellhabeas.com – which also contains an optional order form. Or contact Kent directly at 3169 Washington Street, San Francisco, CA 94115 (415) 563‑8640, e‑mail: firstname.lastname@example.org.