NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN DESHAWN CAGE, No. 18-55724

Petitioner-Appellant, D.C. No. 5:17-cv-01524-PA-AS v.

WARREN L. MONTGOMERY, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted July 10, 2020 Pasadena, California

Before: PAEZ and BADE, Circuit Judges, and GORDON,** District Judge.

Marvin Cage appeals the judgment of the district court dismissing his federal

habeas petition following the court’s denial of a stay under Rhines v. Weber, 544

U.S. 269 (2005). We have jurisdiction under 28 U.S.C. § 1291. We review for an

abuse of discretion, Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014), and we

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Andrew P. Gordon, United States District Judge for the District of Nevada, sitting by designation. vacate and remand.

1. Under Rhines, “a federal district court has discretion to stay [a] mixed

petition to allow the petitioner to present his unexhausted claims to the state court

in the first instance, and then to return to federal court for review of his perfected

petition.” 544 U.S. at 271-72. It is “an abuse of discretion for a district court to

deny a stay and to dismiss a mixed petition if the petitioner 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.”

Id. at 278.

Here, the district court abused its discretion by concluding that Cage failed

to establish good cause for a stay. Under our case law, a federal habeas petitioner

need only “set forth a reasonable excuse, supported by sufficient evidence, to

justify [the] failure” to exhaust. Blake, 745 F.3d at 982. As relevant here, the good

cause standard is satisfied when a petitioner lacked the effective assistance of

counsel during state postconviction review proceedings. See Dixon v. Baker, 847

F.3d 714, 720-22 (9th Cir. 2017); Blake, 745 F.3d at 982-84. As in Dixon, Cage

was without counsel during postconviction proceedings. Although Cage did not

file a state postconviction review petition—in contrast to the petitioner in Dixon—

this distinction is immaterial. As we explained in Dixon, “[a] petitioner who is

without counsel in state postconviction proceedings cannot be expected to

2 understand the technical requirements of exhaustion and should not be denied the

opportunity to exhaust a potentially meritorious claim simply because he lacked

counsel.” 847 F.3d at 721. Accordingly, Cage demonstrated good cause for

failing to exhaust his unexhausted claims, including his claim of ineffective

assistance of trial counsel, during state postconviction review proceedings.

The district court did not address whether Cage has satisfied the second and

third requirements for a Rhines stay. The district court may address these

questions on remand.

2. The district court properly concluded that Cage has not established

good cause based on lack of access to his trial counsel’s legal files.

3. We reject Cage’s contention that he is entitled to a stay under

Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011).

VACATED AND REMANDED.

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