United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING A RHINES
N. PARRISH UNITED STATES DISTRICT JUDGE.
Hand filed a petition for writ of habeas corpus. Before the
court is his motion to stay proceedings in this case pursuant
to Rhines v. Weber, 544 U.S. 269 (2005) so that he
can exhaust some of his claims in state court. [Docket 32].
The court GRANTS the motion and stays this action pending the
final resolution of Hand's state court proceedings.
February 11, 2016, the Utah Court of Appeals affirmed
Hand's state conviction for aggravated sexual abuse of a
child. On June 9, 2016, the Utah Supreme Court denied
certiorari review. On June 1, 2017, Hand filed a pro se
petition for writ of habeas corpus in this court. On June 8,
2017, he also filed a pro se petition for post-conviction
relief in state court. He moved to withdraw his state
petition on August 9, 2017 because he was confused about
procedural issues. The state court granted the motion to
withdraw on the same day.
August 2017, an attorney from the federal public
defender's office began to represent Hand. With the
assistance of his attorney, he filed a second petition for
post-conviction relief in state court on September 7, 2017.
petition for a writ of habeas corpus in this court contains
some claims that have been exhausted through his direct
appeal from his conviction and other claims that have yet to
be exhausted through his state petition for post-conviction
relief. He now moves for a Rhines stay so that he
can exhaust the remainder of his claims in state court before
resolving his federal habeas petition. In Rhines,
the Court addressed “the problem of a ‘mixed'
petition for habeas corpus relief in which a state prisoner
presents a federal court with a single petition containing
some claims that have been exhausted in the state courts and
some that have not.” Id. at 271. The Court
held that federal district courts have the discretion to stay
a mixed petition rather than dismiss it without prejudice
“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. The court addresses each of these three
GOOD CA USE FOR FAILURE TO EXHAUST
Supreme Court did not explain what would constitute good
cause for a failure to exhaust in Rhines. But the
Court later suggested that 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).
lower courts have set a high bar for the good cause standard.
These courts have held that the good cause standard for a
Rhines stay is identical to the good cause standard
for excusing a procedural default announced in Coleman v.
Thompson, 501 U.S. 722 (1991). See Carter v.
Friel, 415 F.Supp.2d 1314, 1319 (D. Utah 2006);
Hernandez v. Sullivan, 397 F.Supp.2d 1205, 1206- 07
(C.D. Cal. 2005); Pierce v. Hurley, No. 2:05-CV-392,
2006 WL 143717, at *8 (S.D. Ohio Jan. 18, 2006), report
and recommendation adopted, No. 2:05-CV-392, 2006 WL
1132917 (S.D. Ohio Apr. 24, 2006). Good cause justifying a
procedural default under Coleman requires the
existence of some external impediment to the petitioner's
compliance with a procedural rule. 501 U.S. at 753. Under
this standard, confusion, inadvertence, or ignorance is not
sufficient to show good cause. Id.
courts have set a lower bar for satisfying the
Rhines good cause requirement. The Ninth Circuit has
held that good cause can easily be established if the
petitioner lacked counsel. Dixon v. Baker, 847 F.3d
714, 721-22 (9th Cir. 2017). Some courts in this district
have cited Ninth Circuit case law with approval, ruling that
ineffective assistance of counsel can constitute good cause
supporting a Rhines s t a y. Kell v.
Crowther, No. 2:07-CV-00359-CW, 2017 WL 5514173, at *2
(D. Utah Nov. 16, 2017); Lafferty v. Crowther, No.
2:07-CV-00322-DB, 2015 WL 6875393, at *4 (D. Utah Oct. 30,
court concludes that the standard adopted by the Ninth
Circuit is better reasoned than the older district court
rulings that adopted a high bar for the good cause
requirement to issue a Rhines stay. These older
district court rulings from 2005 and 2006 relied upon the
strict procedural default standard announced in Coleman
v. Thompson, 501 U.S. 722, 753 (1991). But the Supreme
Court subsequently announced an important caveat to
Coleman. In Martinez v. Ryan, 566 U.S. 1,
17 (2012), the Court held that a petitioner may show good
cause to excuse a procedural default if “there was no
counsel or counsel in [the state] proceeding was
ineffective.” This court agrees with the Ninth Circuit
that the good cause standard for a Rhines stay
cannot be more stringent than the good cause standard for a
procedural default announced in Martinez. See
Dixon, 847 F.3d at 721. Indeed, the Supreme Court has
indicated that a more lenient standard is appropriate by
noting that a “petitioner's reasonable
confusion” would ordinarily constitute good cause to
grant a Rhines stay. Pace, 544 U.S. at 416.
case, Hand was not represented by counsel when he filed his
federal habeas petition before exhausting all of his claims
in state court. Because was acting pro se, his confusion
regarding technical exhaustion requirements constitutes good
cause for his failure to exhaust all of his state claims
before filing a petition in federal court. See
Dixon, 847 F.3d at 721-22.
court may stay Hand's federal petition only if his
unexhausted claims are not “plainly meritless”
Rhines v. Weber, 544 U.S. 269, 277 (2005). The State
argues that Hand's unexhausted claims are obviously
without merit because they are procedurally barred. As noted
above, Hand filed a pro se state petition for post-conviction
relief, but then voluntarily dismissed it two months later
because he was confused about procedural issues. Soon
thereafter, Hand's attorney filed a second state petition
for post-conviction relief within the statute of limitations.
The state district court dismissed the second petition,
citing a Utah statute that states that a person is not
eligible for post-conviction relief on any ground that
“was raised or addressed in any previous request for
post-conviction relief or could have been, but was not,
raised in a previous request for post-conviction
relief.” Utah Code § 78B-9-106(1)(d). The state
court reasoned that even though Hand voluntarily dismissed
his first petition before it could be addressed on the
merits, the first petition constituted a “previous
request for post-conviction relief” that forever barred
any subsequent claims. The State argues that this ruling
establishes that Hand's unexhausted claims are plainly
Hand appealed from the district court ruling, and the appeal
is currently pending. Moreover, the Utah Supreme Court
elected to retain jurisdiction over the case rather than
transferring it to the Utah Court of Appeals. The Utah
Supreme Court's decision to retain the case suggests that
the justices on that court do not view Hand's appeal to
be an easy affirmance of the district court's order.
Because the Utah Supreme Court likely retained the case to
address unresolved questions of law regarding the procedural
default issue, this court determines that the claims pending
in state court are not plainly meritless. There is ...