Armando Mena v. David Long

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMANDO J. MENA, AKA A. J. Mena, No. 14-55102

Petitioner-Appellant,

D.C. No.

v. 5:13-cv-00490-

CJC-RNB

DAVID A. LONG,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted

October 21, 2015—Pasadena, California

Filed February 17, 2016

Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen,

Circuit Judges and Michael A. Ponsor, * Senior District

Judge.

Opinion by Judge Nguyen

*

The Honorable Michael A. Ponsor, Senior District Judge for the U.S.

District Court for Massachusetts, sitting by designation.

2 MENA V. LONG

SUMMARY **

Habeas Corpus

Reversing the district court’s dismissal of a state

prisoner’s habeas corpus petition raising only unexhausted

claims, the panel held that a district court has discretion to

stay and hold in abeyance fully unexhausted habeas petitions

under the circumstances set forth in Rhines v. Weber, 544

U.S. 269 (2005).

Because the district court dismissed the petition on the

assumption that it lacked authority to grant the petitioner’s

request for a Rhines stay, the panel remanded for the district

court to decide in the first instance whether the petitioner is

entitled to such a stay.

COUNSEL

Michael Parente (argued), Deputy Federal Public Defender;

Hilary Potashner, Acting Federal Public Defender, Federal

Public Defender’s Office, Los Angeles, California, for

Petitioner-Appellant.

Daniel Hilton (argued), Deputy Attorney General; Kevin

Vienna, Supervising Deputy Attorney General; Julie

Garland, Senior Assistant Attorney General; Kamala D.

Harris, Attorney General of California, Office of the

Attorney General, San Diego, California, for Respondent-

Appellee.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MENA V. LONG 3

OPINION

NGUYEN, Circuit Judge:

The Supreme Court held in Rhines v. Weber, 544 U.S.

269 (2005), that a district court has discretion to stay, rather

than dismiss, a timely-filed “mixed” petition for habeas

corpus relief—that is, a single petition that includes both

exhausted and unexhausted claims. Today we join several

of our sister circuits in holding that the Rhines stay-and-

abeyance procedure is not limited to mixed petitions, and a

district court may stay a petition that raises only unexhausted

claims. Because the district court here held otherwise, we

reverse and remand.

I.

Petitioner Armando Mena received a 40-year prison

sentence after pleading guilty to five counts of lewd and

lascivious acts by use of force for sexually abusing his

stepdaughters and their cousin. Mena filed a notice of appeal

and a request for certificate of probable cause challenging

the validity of his plea, asserting that his counsel had given

him defective advice concerning his plea and sentence. The

state trial court granted the request for certificate of probable

cause.

On direct appeal, Mena’s appointed counsel filed a brief

under People v. Wende, 600 P.2d 1071 (Cal. 1979), and

Anders v. California, 386 U.S. 738 (1967), setting forth a

statement of facts but identifying no potential arguable

issues. The California Court of Appeal invited Mena to file

a personal supplemental brief, but Mena failed to do so. The

California Court of Appeal then conducted an independent

review of the entire record, found no arguable issues, and

issued an opinion affirming the judgment of the trial court.

4 MENA V. LONG

Mena next filed a state habeas petition in the California

Supreme Court alleging ineffective assistance of trial and

appellate counsel. The California Supreme Court denied the

petition in a one-sentence opinion citing People v. Duvall,

886 P.2d 1252, 1258 (Cal. 1995), and In re Swain, 209 P.2d

793, 796 (Cal. 1949), indicating that Mena had failed to

“state fully and with particularity the facts on which relief is

sought.” Duvall, 886 P.2d at 1258; Swain, 209 P.2d at 796.

Proceeding to federal court, Mena next filed a timely pro

se petition under 28 U.S.C. § 2254 in the Central District of

California. Noting various deficiencies in the petition, the

district court issued an order appointing counsel for Mena

and dismissing the petition without prejudice. The court

noted that all of Mena’s claims appeared to be unexhausted

because the California Supreme Court denied his state

habeas petition without reaching the merits. About eight

months later, but still within the limitations period, Mena

filed his First Amended Petition, raising four constitutional

claims which he conceded were unexhausted, while at the

same time moving for a stay under Rhines v. Weber so he

could exhaust those claims in state court. 1

The magistrate judge issued a Report and

Recommendation recommending that the district court deny

Mena’s request for a Rhines stay and dismiss his petition

without prejudice. The magistrate judge reasoned that the

case was “not an appropriate case for invocation of the stay-

and-abeyance procedure authorized by Rhines because that

procedure applies only to mixed petitions and petitioner here

has conceded that the operative [petition] is not a mixed

petition.” The district court adopted the Report and

1

Mena does not dispute the district court’s conclusion that his claims

were unexhausted, and thus we do not review that issue.

MENA V. LONG 5

Recommendation in full and denied Mena’s request for a

Rhines stay.

We granted a certificate of appealability on “whether the

district court properly denied appellant’s request for a stay,

including whether the district court has discretion to use the

stay and abeyance procedure outlined in Rhines v. Weber,

544 U.S. 269 (2005), and Pace v. DiGuglielmo, 544 U.S. 408

(2005), to stay and hold in abeyance a habeas petition

containing only unexhausted claims.”

II.

Generally, a habeas petition under 28 U.S.C. § 2254 may

“not be granted unless it appears that . . . the applicant has

exhausted the remedies available in the courts of the State

. . . .” 28 U.S.C. § 2254(b)(1). Over thirty years ago, the

Supreme Court interpreted this provision to require district

courts to dismiss petitions that contain even one unexhausted

claim. Rose v. Lundy, 455 U.S. 509, 510 (1982).

Importantly, however, “Lundy was decided at a time when

petitioners could return to federal court after exhausting their

unexhausted claims to ‘present their perfected petitions with

relative ease,’ as there was no statute of limitations on filing

federal habeas petitions.” Doe v. Jones, 762 F.3d 1174, 1177

(10th Cir. 2014) (quoting Rhines, 544 U.S. at 274). Then

came the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), which “dramatically altered the

landscape” by establishing a one-year statute of limitations

for such petitions. Rhines, 544 U.S. at 274. Because of

AEDPA’s brief limitations period, petitioners who brought

unexhausted claims to federal court faced the possibility that

they would have insufficient time to exhaust those claims in

state court then return to federal court. The Supreme Court

confronted this issue in Rhines v. Weber, where it held that

under certain circumstances district courts may stay and hold

6 MENA V. LONG

in abeyance mixed petitions to allow petitioners to exhaust

their unexhausted claims without losing their place in federal

court. Id. at 275–77.

We have not addressed in our circuit whether such a stay-

and-abeyance procedure is available when a petition is fully

unexhausted, not mixed. But our sister circuits—the Third,

Seventh, and Tenth—that have done so have all held that

Rhines applies to a petition that includes solely unexhausted

claims. See Doe, 762 F.3d at 1174; Heleva v. Brooks,

581 F.3d 187, 191 (3d Cir. 2009); Dolis v. Chambers,

454 F.3d 721, 724 (7th Cir. 2006). We agree.

Like the Supreme Court’s analysis in Rhines, our

analysis begins with the general principle that “[d]istrict

courts do ordinarily have authority to issue stays where such

a stay would be a proper exercise of discretion.” Rhines,

544 U.S. at 276 (citations omitted). As the Court

recognized, AEDPA does not eliminate district courts’

authority to issue stays in habeas proceedings, but rather—

at least in cases of mixed petitions—limits it to when “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. Similarly here, we

find no authority eliminating the district courts’ presumed

discretion to issue stays in cases of fully unexhausted

petitions, and we find no reason to adopt limits on that

discretion different from those set forth in Rhines.

Indeed, this application of Rhines is supported, if not

required, by statements in other Supreme Court cases

suggesting that petitioners with fully unexhausted petitions

can seek stays. Just one month after deciding Rhines, the

Court considered in Pace v. DiGuglielmo whether AEDPA’s

one-year statute of limitations is tolled when a petitioner

MENA V. LONG 7

files an untimely petition in state court. Holding that the

statute is not tolled, the Court added:

A prisoner seeking postconviction relief

might avoid this predicament . . . by filing a

“protective” petition in federal court and

asking the federal court to stay and abey the

federal habeas proceedings until state

remedies are exhausted. . . . A petitioner’s

reasonable confusion about whether a state

filing would be timely will ordinarily

constitute “good cause” for him to file in

federal court.

Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). Notably,

the petition in Pace was not mixed, and the Court gave no

indication that its statement applied only to mixed petitions.

Heleva, 581 F.3d at 191. It would be odd, to say the least,

for the Supreme Court to suggest a stay procedure to a

petitioner who could not have used it, and to “recommend[]

this course of action without any mention that it could apply

only to a mixed petition.” Id. We can only conclude that the

Court expected Rhines to apply to fully unexhausted

petitions. 2 Accord Id.

The state argues that because Rhines concerned a mixed

petition, the pre-AEDPA rule established in Rose v. Lundy

continues to govern fully unexhausted petitions, and

mandates dismissal. But the state’s argument not only begs

2

At least one other Supreme Court case provides similar indications.

See Gonzalez v. Thaler, 132 S.Ct. 641, 655 (2012) (“To the extent a

petitioner has had his or her federal filing period severely truncated by a

delay in the [state appellate court] mandate’s issuance and has

unexhausted claims that must be raised on state habeas review, such a

petitioner could file a request for a stay and abeyance from the federal

district court.”).

8 MENA V. LONG

the question of whether Rhines was in fact limited to mixed

petitions, it also ignores the context of Lundy. When Lundy

was decided, there was no need for the stay procedure set

forth in Rhines—AEDPA’s one-year statute of limitations

had not yet been enacted. Rhines, 544 U.S. at 274. Not only

that, the dismissal mandated in Lundy achieved the same

result as the stay procedure in Rhines—petitioners could

exhaust their claims in state court then return to federal

court. Against this backdrop, it is clear that Lundy did not

address, let alone foreclose, the use of a stay-and-abeyance

procedure.

Moreover, even setting aside the Supreme Court’s

statement in Pace, we do not find the distinctions between

mixed petitions and fully unexhausted petitions sufficiently

meaningful to warrant different treatment. In both cases,

petitioners who are denied stays run the risk of forever losing

federal review of their claims. We find unpersuasive the

state’s claim that different treatment is nonetheless justified

because mixed petitions, unlike fully unexhausted ones,

demonstrate that petitioners at least attempted to pursue state

remedies. Even accepting the premise as true, the test set

forth in Rhines better addresses this concern by ensuring that

a stay is granted only when the petitioner shows, among

other things, “good cause for his failure to exhaust.” Rhines,

544 U.S. at 278; see also Doe, 762 F.3d at 1181 (“Whether

they have mixed or unmixed petitions, petitioners with little

chance of exhausting their claims in state court and returning

to federal court before the limitations period runs should not

be foreclosed from the very mechanism designed to protect

against such risk if they can satisfy the Rhines standards.”).

Denying stays to all petitioners with fully unexhausted

petitions, without regard to good cause excusing a failure to

exhaust, creates a needlessly overbroad rule.

MENA V. LONG 9

Finally, the state cites Rasberry v. Garcia, 448 F.3d 1150

(9th Cir. 2006), but that opinion does not dictate a different

result. In Rasberry, the district court had dismissed the

petitioner’s first petition because it contained only

unexhausted claims, then, when the petitioner re-filed his

petition after exhausting those claims, dismissed the second

petition as untimely. Id. at 1152–53. On appeal, the

petitioner argued that the district court erred in denying him

equitable relief—such as equitable tolling or relation back of

his filing date—before dismissing his second petition.

According to the petitioner, he was entitled to such relief

because the district court failed to inform him before

dismissing his first petition that he could amend the petition

to include two exhausted claims he had omitted and then

seek a stay. Id. at 1151. Rejecting the petitioner’s argument,

we reasoned that it would be “unworkable” to require the

district court to intuit that the petitioner had excluded

exhausted claims from his petition, then to advise him to add

those claims and seek a stay from the court:

District courts have the discretion to hold a

mixed petition in abeyance pending

exhaustion of the unexhausted claims.

Rhines v. Weber, 544 U.S. 269, 125 S.Ct.

1528, 1535, 161 L.Ed.2d 440 (2005). We

decline to extend that rule to the situation

where the original habeas petition contained

only unexhausted claims, but the record

shows that there were exhausted claims that

could have been included. Such an extension

would result in a heavy burden on the district

court to determine whether a petitioner who

files a petition that on its face is unexhausted

10 MENA V. LONG

may have other exhausted claims that could

have been raised.

Id. at 1154.

As the Tenth Circuit correctly noted, our statement in

Rasberry, “read in light of the case’s factual context,”

concerned only the limited question of whether the district

court must inform petitioners that an amendment-and-stay

procedure may be available, not the broader question of

whether Rhines applies to fully unexhausted petitions. See

Doe, 762 F.3d at 1180. Indeed, the district court proceedings

were before Rhines was decided, and thus the petitioner

neither requested a Rhines stay nor argued on appeal that

Rhines applied to fully unexhausted petitions. Addressing

only the arguments actually presented, we thus assumed

without deciding that Rhines was limited to mixed petitions.

In short, we did not confront the issue presented here. See

Heleva, 581 F.3d at 192 (noting that Rasberry “was focused

on the issue of mixed petitions”); see also Doe, 762 F.3d at

1180 (“In light of Rasberry’s request for a notice

requirement, the Ninth Circuit declined to apply Rhines to

the petition before it . . . .”). Thus Rasberry does not control

the present case. 3

III.

In sum, we hold that a district court has the discretion to

stay and hold in abeyance fully unexhausted petitions under

the circumstances set forth in Rhines. Because the district

court here dismissed the petition on the assumption that it

3

To the extent our stray language in Rasberry might be interpreted to

suggest otherwise, it is nevertheless not binding. See United States v.

Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (noting that a ruling

becomes the law of the circuit when resolved “after reasoned

consideration”).

MENA V. LONG 11

lacked authority to grant Mena’s request for a Rhines stay,

we reverse and remand for it to decide in the first instance

whether Mena is entitled to such a stay.

REVERSED AND REMANDED.