Argued and Submitted November 4, 2013, San Francisco, California
Appeal from the United States District Court for the District of Nevada. D.C. No. 3:09-cv-00327-RCJ-WGC. Robert Clive Jones, Chief District Judge, Presiding.
Tiffani D. Hurst (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Michael Pescetta, Albert Sieber, and Randolph Fiedler, Assistant Federal Public Defenders, Las Vegas, Nevada, for Petitioner-Appellant.
Heather D. Procter (argued), Senior Deputy Attorney General; Catherine Cortez Masto, Attorney General, Carson City, Nevada, for Respondent-Appellee.
Before: A. Wallace Tashima, William A. Fletcher, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Tashima.
TASHIMA, Circuit Judge.
Alfonso Manuel Blake, a state prisoner, filed a habeas corpus petition under 28 U.S.C. § 2254 based on, inter alia, alleged ineffective assistance of trial counsel (" IAC" ). Because this claim was not exhausted, Blake moved for a stay and abeyance under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), so that he could return to state court and exhaust this claim. The district court denied the motion. We must decide whether Blake's explanation for failure to exhaust this claim met the " good cause" requirement of Rhines. Because we answer that question in the affirmative, we reverse and remand.
Blake was convicted in Nevada state court of two counts of first-degree murder with the use of a deadly weapon and sentenced to death. The convictions were affirmed on appeal. Blake then filed a state habeas petition, which was denied. The denial was affirmed on appeal.
Blake then timely filed this federal petition. In his amended petition, he argued for the first time that, among other things, his trial counsel was ineffective for failing to discover and present to the jury evidence of Blake's abusive upbringing and history of mental illness.
Blake's amended petition was a " mixed petition," i.e., it contained both exhausted and unexhausted claims. As such, it was subject to dismissal under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Blake thereafter filed a Rhines motion for a stay and abeyance of his mixed petition so that he could return to state court fully to exhaust his unexhausted claims. He argued that he had good cause for failing to exhaust his trial-counsel IAC claim because he received ineffective assistance of counsel during state post-conviction proceedings. He argued that his state post-conviction counsel was ineffective because she " failed to conduct any independent investigation" and discover " easily identifi[able]" claims that Blake had endured " outrageous and severe sexual, physical and emotional abuse as a child" and " suffered from organic brain damage and psychological disorders." In other words, Blake argued that his state post-conviction counsel was ineffective for failing to discover the same evidence underlying his trial-counsel IAC claim.
The district court denied Blake's motion for a stay and abeyance on the sole ground that Blake failed to establish good cause. It held that IAC by post-conviction counsel did not constitute good cause because it was an excuse " that could be raised in virtually every case." In denying a subsequent motion for reconsideration, the district court held that Blake's excuse was " too generic" and that, as a matter of law, " Strickland -type claim[s] of ineffective assistance of post-conviction counsel cannot constitute good cause for failing to exhaust."
The district court ordered Blake to abandon his unexhausted claims or face dismissal under Lundy. Blake elected not to ...