The opinion of the court was delivered by: Edward C. Reed
This matter is before the Court on remand from the Ninth Circuit Court of Appeals with directions that the Court reconsider the dismissal "in light of the Supreme Court's recent decision in Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005)." Order (docket #62).
Petitioner originally came before this Court in 1999 on a petition for writ of habeas corpus. Upon a motion to dismiss, the Court determined that grounds 2A, 2C, 2E, 2F, 2G, and 3 of the First Amended Petition were unexhausted and that grounds 2B and 2D were procedurally defaulted. See Order (docket #35). The Court allowed petitioner to file a declaration either abandoning the unexhausted claims or stating his desire to dismiss the petition without prejudice and without entry of judgment to return to state court to exhaust those claims.*fn1 Id. Petitioner decided to abandonáhis unexhausted grounds and proceeded to litigate the remainder of his petition (docket #36). The petition was dismissed in September of 2002 and went up on appeal at that time.
The matter has now been remanded to permit petitioner an opportunity to show that a stay and abeyance of the matter is appropriate so that he can exhaust his unexhausted grounds in state court.
In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L. Ed. 2d 440 (2005), the Supreme Court placed some limitations upon the discretion of this Court to facilitate habeas petitioners' return to state court to exhaust claims. The Rhines Court stated:
Stay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, 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. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").
It likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if theápetitioner 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. à and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.
Rhines, 125 S.Ct. at 1535.
Rhines cautioned, that stay-and-abeyance is appropriate only when the district court determines that there was "good cause" for the failure to exhaust. Id. at 1535. The Court did not, however, provide a definition of what would constitute "good cause."
In searching to answer that question, this Court has uncovered very little precedential case law, but has found several instances wherein the courts have discussed the "good cause" standard applicable in a Rhines analysis.
Various courts have adopted the standard for cause applicable to procedural defaults which requires that some "objective factor external to the defense" made it impossible to bring the claim earlier in the state court proceedings as required by Coleman v. Thompson, 501 U.S. 722, 755, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991). See e.g., Fernandez v. Artuz, 2006 U.S. Dist. LEXIS 1316, 2006 WL 121943, *5 (S.D.N.Y., January 18, 2006); Pierce v. Hurley, 2006 U.S. Dist. LEXIS 1507, 2006 WL 143717, *8 (S.D.Ohio, January 18, 2006); Carter v. Friel, 415 F. Supp. 2d 1314, 2006 WL 208872, *3 (D.Utah, January 6, 2006); Hernandez v. Sullivan, 397 F.Supp.2d 1205, 1207 (C.D. Cal., 2005). Others, such as Jackson v. Roe, 425 F.3d 654 (9th Cir. 2005), and the remanded Rhines v. Weber, 408 F. Supp. 2d 844, 2005 U.S. Dist. LEXIS 39941, 2005 WL 3466015, *2-3 (D.S.D., December 19, 2005), conclude that the cause standard of Rhines requires a lesser showing than the for procedural default.
In Jackson v. Roe, the Ninth Circuit Court of Appeals concluded that good cause did not require a showing of ...