NOT FOR PUBLICATION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.

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