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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

9 10 CHARLES WILLIAMS, Case No. 2:19-cv-02663-AFM 11

Petitioner, 12 MEMORANDUM OPINION AND v. ORDER DISMISSING FIRST 13

AMENDED PETITION WITHOUT

14 NEIL McDOWELL, Warden, PREJUDICE

15 Respondent. 16 17 BACKGROUND 18 On April 1, 2019, Petitioner filed this habeas corpus petition pursuant to 28 19 U.S.C. § 2254 challenging his 2017 conviction of involuntary manslaughter. (ECF 20 No. 1.) On April 10, 2019, the Court issued an order explaining that it appeared that 21 the claims raised in this federal petition had never been presented to the California 22 Supreme Court and, therefore, the petition was subject to dismissal. The Court 23 directed Petitioner to file an amended petition clearly indicating whether he had 24 exhausted his state remedies by presenting his claims to the California Supreme 25 Court. The order informed Petitioner that if he wished to raise unexhausted claims in 26 his first amended petition, he should file a motion to stay the proceedings. Petitioner 27 was further informed of the limited circumstances under which a stay could be 28 warranted under Rhines v. Weber, 544 U.S. 269 (2005), including the requirement 1 that he show good cause for his failure to exhaust his state remedies. (ECF No. 7.) Petitioner filed a first amended petition on April 29, 2019. (ECF No. 8.) The 2 first amended petition makes clear that Petitioner has never filed any petition 3 challenging his 2017 conviction in the California Supreme Court. (See ECF No. 8 at 4 3, 4-6.) Nonetheless, Petitioner did not file a motion for a stay. 5 On May 7, 2019, the Court issued a report and recommendation (“R&R”), 6 recommending that the action be dismissed based upon Petitioner’s failure to exhaust 7 his state remedies with respect to any claim presented in the first amended petition. 8 (ECF No. 9.) After Petitioner filed objections to the R&R that were difficult to 9 discern, the Court provided him another opportunity to request a stay. In its June 4, 10 2019 order, the Court repeated the requirements of a stay pursuant to Rhines, notably 11 the requirement of showing good cause. (ECF No. 14.) 12 In response, Petitioner filed a motion for a stay. (ECF No. 15.) On July 16, 13 2019, Respondent filed an opposition to Petitioner’s motion. (ECF No. 19.) Petitioner 14 had until August 15, 2019 to file a reply to the opposition. As of the date of this 15 memorandum and order, Petitioner has neither filed a reply nor requested an 16 extension of time within which to do so.1 17

DISCUSSION

18 19 1. Petitioner is not entitled to a stay. In Rhines, the Supreme Court held that a petitioner is entitled to a stay if he 20 demonstrates that (1) he has “good cause” for his failure to exhaust his claims in state 21 court; (2) the unexhausted claims are not “plainly meritless”; and (3) there is no 22 indication that he intentionally engaged in dilatory litigation tactics. Rhines, 544 U.S. 23 at 277-278; see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (extending 24 Rhines to petitions that contain only unexhausted claims). In order to show good 25 cause, a petitioner seeking a stay must “set forth a reasonable excuse, supported by 26

27 1 All parties have consented to proceed before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). 28 1 sufficient evidence” justifying his failure to exhaust claims earlier. Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014).2 2 On two occasions, Petitioner was notified of the showing he is required to 3 make in order to be entitled to a stay under Rhines – first, in the April 10, 2019 order 4 dismissing his petition and again on June 4, 2019. (ECF Nos. 7 & 14.) Despite having 5 two opportunities to do so, Petitioner’s motion for a stay does not set forth any reason 6 justifying his failure to exhaust his claims. (See ECF No. 15.) Indeed, Petitioner has 7 not offered any excuse for his failure to present his unexhausted claims to the 8 California Supreme Court, let alone provided evidentiary support for a “reasonable 9 excuse.” See Blake, 745 F.3d at 982 (noting “[a]n assertion of good cause without 10 evidentiary support will not typically amount to a reasonable excuse justifying a 11 petitioner's failure to exhaust”). 12 Respondent points out that the Ninth Circuit has held that a petitioner’s lack 13 of counsel in state postconviction proceedings may constitute good cause for failure 14 to exhaust. Dixon v. Baker, 847 F.3d 714, 721-722 (9th Cir. 2017) (finding that lack 15 of post-conviction counsel could constitute good cause for a Rhines stay where the 16 petitioner had “repeatedly” asserted in his federal proceedings that he was without 17 counsel in state post-conviction proceedings, and did so again in support of his 18 motion for a Rhines stay). Petitioner, however, has not argued that good cause exists 19 because he was without counsel in his post-conviction proceedings. Furthermore, it 20 appears that Petitioner was able to, and actually did, raise his claims in a habeas 21 corpus petition filed in the California Court of Appeal. That petition was denied on 22 March 13, 2019. (See ECF No. 8; California Court of Appeal Case No. E072292.) 23 Petitioner has not explained why he was unable to file an identical petition raising 24 the same allegations in the California Supreme Court. See Brown v. Muniz, 2018 WL 25 26

27 2 A district court may also hold a fully exhausted petition in abeyance pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Kelly does not apply here because the first amended petition includes 28 1 || 7252958, at *6 (C.D. Cal. Dec. 28, 2018) (no good cause shown under Rhines where 2 || the petitioner did not argue his lack of postconviction counsel was the reason he failed 3 || to exhaust and where record showed the petitioner had been “able to pursue post- 4 || conviction relief in the state courts without counsel”), report and recommendation 5 || adopted, 2019 WL 483320 (C.D. Cal. Feb. 7, 2019). 6 2. The first amended petition must be dismissed due to Petitioner’s failure 7 to exhaust his state remedies. 8 A State prisoner is required to exhaust all available state court remedies before 9 || a federal court may grant him habeas relief. 28 U.S.C. § 2254(b); O'Sullivan v. 10 || Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion requirement, a 11 || petitioner must fairly present both the factual and the federal legal basis for his claims 12 || to the highest state court. O’Sullivan, 526 U.S. at 845. 13 Petitioner concedes that he has not presented any of the claims raised in this 14 || federal petition to the California Supreme Court. (See ECF No. 8 at 4-6.) Because the 15 || first amended petition consists entirely of unexhausted claims, it must be dismissed 16 || without prejudice.’ See Rose v. Lundy, 455 U.S. 509, 522 (1982). 17 ORDER 18 IT THEREFORE ORDERED that Petitioner’s motion for a stay is denied and 19 || Judgment be entered dismissing the first amended petition without prejudice for 20 || failure to exhaust. 21 22 || DATED: 10/4/2019 . 23 (Wy / ff fk ALEXANDER F.MacKINNON 25 UNITED STATES MAGISTRATE JUDGE 26 27 |; —— A 3 Petitioner is notified that any future federal petition is subject to the one-year limitation period set 28 |! forth in 28 U.S.C. § 2244(d).