Ninth Circuit: IAC Under Strickland Satisfies Rhines’ ‘Good Cause’ Standard to Stay Federal Habeas Petition, Allowing Exhaustion of State Court Remedies
by Dale Chappell
Finding that the U.S. District Court for the District of Nevada applied the incorrect standard in denying a state prisoner’s request to stay his federal habeas petition while he returned to state court to exhaust his state post-conviction remedies, the U.S. Court of Appeals for the Ninth Circuit held that its prior case law requires a standard no more demanding than what the U.S. Supreme Court allows for bypassing a state court’s procedural bar.
After Gregory Bolin was sentenced to death in a Nevada court for murder in 1996, his appeals were fruitless, and he then filed for postconviction relief in state court. Several years later, all his postconviction remedies were denied, so Bolin filed for habeas corpus relief in federal court. He raised 55 claims, but 29 were unexhausted in state court, meaning he hadn’t properly raised the claim in state court first. Rather than abandon the unexhausted claims and continue with the exhausted claims, Bolin requested that the district court “stay” his petition while he returned with those unexhausted claims to state court.
The district court, however, denied Bolin’s motion to stay. It ruled, among other things, that Bolin had to show “good cause” for a stay, which it defined as something “outside the control of the petitioner and his counsel” (Bolin had been appointed counsel by the state court). That is, the court concluded that it was irrelevant what evidence Bolin could provide for his ineffective assistance of counsel (“IAC”) claim because he was “bound by the acts of his counsel.”
Bolin had, in fact, argued that appointed state counsel was ineffective for failing to investigate and raise his unexhausted claims in state court, which should have been good cause to stay his federal habeas petition. But after the district court’s denial of this argument, Bolin agreed to abandon his unexhausted claims, so his federal petition wouldn’t be time-barred. Years later, in 2015, the district court denied all of those claims but granted a certificate of appealability to allow an appeal on whether the court should have stayed his motion.
The Court began its analysis by noting that under Rose v. Lundy, 455 U.S. 509 (1982), federal courts may not hear “mixed petitions” for habeas corpus, i.e., ones that contain both exhausted and unexhausted claims. At the time Lundy was decided, there wasn’t a statute of limitations for habeas petitions. But then the Antiterrorism and Effective Death Penalty (“AEDPA”) was enacted and imposed a strict one-year limit on filing federal habeas petitions, which meant that a state prisoner usually did not have enough time to go back to state court, exhaust his claims, and return to federal court within that one-year limit since pendency of a federal habeas petition doesn’t toll the statute of limitations under ADEPA. 28 U.S.C. § 2244(d)(2); see Duncan v.Walker, 533 U.S. 167 (2001).
The Court observed that this created a “trap,” requiring “petitioners to abandon unexhausted claims, without regard to their merit and without regard to the reason why they were unexhausted, in order to pursue their exhausted claims.”
The Supreme Court resolved this predicament in Rhines v. Weber, 544 U.S. 269 (2005), holding that a federal court may issue a stay-and-abeyance order “in limited circumstances” to allow exhaustion in state court. The Rhines Court instructed that stay and abeyance is appropriate 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.”
As to the “good cause” prong, the Ninth Circuit has held that it does not require a showing of “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654 (9th Cir. 2005). But it is not satisfied by a naked assertion that a petitioner was “under the impression” that his claims were exhausted. Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008).
In Blake v. Baker, 745 F.3d 977 (9th Cir. 2014), the Ninth Circuit rejected the district court’s conclusion that since a Strickland claim could be made in virtually every case it could never satisfy Rhines. The Court applied Rhines and ruled that if state postconviction counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), then that could constitute “good cause” for a stay. The Blake Court ruled that the Rhines standard is “not any more demanding than the cause standard articulated in Martinez v. Ryan, 566 U.S. 1 (2012), which allows a petitioner to bypass a state postconviction court’s procedural bar because of counsel’s errors. In the current case, the Court reasoned that Rhines should require no more [than Martinez], as it permits a petitioner only to return to state court.” (internal quotation marks omitted)
In providing guidance as to what constitutes a “potentially meritorious” claim under Rhines, the Court cited Dixon v. Baker, 847 F.3d 714 (9th Cir. 2017), in which the petitioner argued that trial counsel had been ineffective for failing to object to the prosecution’s opening statement during which petitioner’s booking photo with the word ‘GUILTY’ on it was shown to the jury. The Dixon Court held that his claim was not “plainly meritless” because it satisfied Rhines’ second criterion.
Applying the foregoing case law to the present case, the Court ruled that the district court erred in applying the standard it rejected in Blake.
Accordingly, the Court reversed and remanded for the district court to apply the proper standard in ruling on the Rhines motion. See: Bolin v. Baker, 994 F.3d 1154 (9th Cir. 2021).
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Bolin v. Baker
|Cite||994 F.3d 1154 (9th Cir. 2021)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|
Duncan v. Walker
|Cite||533 U.S. 167 (U.S. Supreme Court 2001)|
533 U.S. 167; 121 S. Ct. 2120; 150 L. Ed. 2d 251
GEORGE DUNCAN, SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY v. SHERMAN WALKER
March 26, 2001, Argued
June 18, 2001, Decided
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
DISPOSITION: 208 F.3d 357, reversed and remanded.
The time during which an "application for State post-conviction or other collateral review" is pending tolls the limitation period for filing federal habeas petitions. 28 U.S.C. § 2244(d)(2). Before the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), respondent's state robbery conviction became final. He filed, inter alia, a federal habeas petition under § 2254. The District Court dismissed the petition without prejudice because it was not apparent that respondent had exhausted available state remedies. On May 20, 1997, without having returned to state court, respondent filed another federal habeas petition. The District Court dismissed that petition because respondent had not filed within a reasonable time from AEDPA's effective date. In reversing, the Second Circuit found that respondent's first federal habeas petition was an application for "other collateral review" that tolled the limitation period under § 2244(d)(2) and made his current petition timely.
Held: A federal habeas petition is not an "application for State post-conviction or other collateral review" within the meaning of § 2244(d)(2). As a result, § 2244(d)(2) did not toll the limitation period during the pendency of respondent's first federal habeas petition. The Court begins with the language of the statute. See, e.g., Williams v. Taylor, 529 U.S. 420, 431, 146 L. Ed. 2d 435, 120 S. Ct. 1479. Petitioner's contention that "State" applies to the entire phrase "post-conviction or other collateral review" is correct. To begin with, Congress placed "State" before that phrase without specifically naming any kind of "Federal" review. The fact that other AEDPA provisions denominate expressly both "State" and "Federal" proceedings, see, e.g., § 2254(i), supplies strong evidence that Congress would have mentioned "Federal" review expressly had Congress intended to include federal review. See Bates v. United States, 522 U.S. 23, 29-30, 139 L. Ed. 2d 215, 118 S. Ct. 285. Respondent's contrary construction would render the word "State" insignificant, if not wholly superfluous. This Court's duty to give effect, where possible, to every word of a statute, United States v. Menasche, 348 U.S. 528, 538-539, 99 L. Ed. 615, 75 S. Ct. 513, makes the Court reluctant to treat statutory terms as surplusage. This is especially so when the term occupies so pivotal a place in the statutory scheme as the word "State" in the federal habeas statute. But under respondent's rendition, "State" has no operative effect on the scope of § 2244(d)(2). The clause would have precisely the same content were it to read "post-conviction or other collateral review." Contrary to the Second Circuit's characterization, petitioner's interpretation does not yield the linguistic oddity "State other collateral review," but more naturally yields the understanding "other State collateral review." Further, that court's reasoning that the phrase "other collateral review" would be rendered meaningless if it did not refer to federal habeas petitions depends on the incorrect premise that the only state "collateral" review is "post-conviction" review. "Other collateral review" could include, e.g., a state court civil commitment or civil contempt order. Congress also may have used "post-conviction or other collateral" in recognition of the diverse terminology that different States employ to represent the different forms of collateral review that are available after a conviction. Examination of the AEDPA provision establishing the limitation period for filing § 2254 petitions in state capital cases, § 2263(b)(2), shows that Congress used the disjunctive clause "post-conviction review or other collateral relief" where the latter term could not possibly include anything federal within its ambit. Petitioner's construction is also far more consistent than respondent's with AEDPA's purpose to further the principles of comity, finality, and federalism. Respondent contends that petitioner's interpretation creates the potential for unfairness to litigants who file timely federal petitions that are dismissed without prejudice after the limitation period has expired. But the Court's sole task here is one of statutory construction. And in light of the facts that respondent never cured the defects that led to the dismissal of his first federal petition during the remaining nine months of the limitation period, and that his 1996 and 1997 petitions contained different claims, this Court has no occasion to address alternative scenarios. Pp. 3-14.
208 F.3d 357, reversed and remanded.
COUNSEL: Preeta D. Bansal argued the cause for petitioner.
Deborah W. Loewenberg argued the cause for respondent.
JUDGES: O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. SOUTER, J., filed a concurring opinion. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in which SOUTER, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined.
OPINION: [*169] [***256] [**2123]
JUSTICE O'CONNOR delivered the opinion of the Court.
Title 28 U.S.C. § 2244(d)(2) (1994 ed., Supp. V) provides: "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." This case presents the question whether a federal habeas corpus petition is an "application for State post-conviction or other collateral review" within the meaning of this provision.
In 1992, several judgments of conviction for robbery were entered against respondent Sherman Walker in the [*170] New York state courts. The last of these convictions came in June 1992, when respondent pleaded guilty to robbery in the first degree in the New York Supreme Court, Queens County. Respondent was sentenced to 7 to 14 years in prison on this conviction.
Respondent unsuccessfully pursued a number of state remedies in connection with his convictions. It is unnecessary to describe all of these proceedings herein. Respondent's last conviction was affirmed on June [***257] 12, 1995. Respondent was later denied leave to appeal to the New York Court of Appeals. Respondent also sought a writ of error coram nobis, which the Appellate Division denied on March 18, 1996. Respondent's last conviction became final in April 1996, prior to the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214.
In a single document dated April 10, 1996, respondent filed a complaint under Rev. Stat. § 1979, 42 U.S.C. § 1983, and a petition for habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York. On July 9, 1996, the District Court dismissed the complaint and petition without prejudice. With respect to the habeas petition, the District Court, citing § 2254(b), concluded that respondent had not adequately set forth his claim because it was not apparent that respondent had exhausted available state remedies. The District Court noted that, for example, respondent had failed to specify the claims litigated in the state appellate proceedings relating to his robbery convictions.
On May 20, 1997, more than one year after AEDPA's effective date, respondent filed another federal habeas petition in the same District Court. It is undisputed that respondent had not returned to state court since the dismissal of his first federal habeas filing. On May 6, 1998, the District Court dismissed the petition as time barred because [*171] respondent had not filed the petition within a "reasonable time" from AEDPA's effective date.
The United States Court of Appeals for the Second Circuit reversed the District Court's judgment, reinstated the habeas petition, and remanded the case for further proceedings. Walker v. Artuz, 208 F.3d 357 (2000). The Court of Appeals noted at the outset that, because respondent's conviction had become final prior to AEDPA's effective date, he had until April 24, 1997, to file his federal habeas petition. The court also observed that the exclusion from the limitation period of the time during which respondent's first federal habeas petition was pending in the District Court would render the instant habeas petition timely.
The Court of Appeals held that respondent's first federal habeas petition had tolled the limitation period because it was an application for "other collateral review" [**2124] within the meaning of § 2244(d)(2). The court characterized the disjunctive "or" between "post-conviction" and "other collateral" as creating a "distinct break" between two kinds of review. Id., at 359. The court also stated that application of the word "State" to both "post-conviction" and "other collateral" would create a "linguistic oddity" in the form of the construction "State other collateral review." Id., at 360. The court further reasoned that the phrase "other collateral review" would be meaningless if it did not refer to federal habeas petitions. The court therefore concluded that the word "State" modified only "post-conviction."
The Court of Appeals also found no conflict between its interpretation of the statute and the purpose of AEDPA. The court found instead that its construction would promote the goal of encouraging petitioners to file their federal habeas applications as soon as possible. [***258]
We granted certiorari, 531 U.S. 991 (2000), to resolve a conflict between the Second Circuit's decision and the decisions of three other Courts of Appeals. See Jiminez v. Rice, 222 F.3d 1210 (CA9 2000); Grooms v. Johnson, 208 F.3d 488 [*172] (CA5 1999) (per curiam); Jones v. Morton, 195 F.3d 153 (CA3 1999). One other Court of Appeals has since adopted the Second Circuit's view. Petrick v. Martin, 236 F.3d 624 (CA10 2001). We now reverse.
[***H] R2 
Our task is to construe what Congress has enacted. We begin, as always, with the language of the statute. See, e.g., Williams v. Taylor, 529 U.S. 420, 431, 146 L. Ed. 2d 435, 120 S. Ct. 1479 (2000); Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 175, 106 L. Ed. 2d 134, 109 S. Ct. 2854 (1989); Watt v. Energy Action Ed. Foundation, 454 U.S. 151, 162, 70 L. Ed. 2d 309, 102 S. Ct. 205 (1981). Respondent reads § 2244(d)(2) to apply the word "State" only to the term "post-conviction" and not to the phrase "other collateral." Under this view, a properly filed federal habeas petition tolls the limitation period. Petitioner contends that the word "State" applies to the entire phrase "post-conviction or other collateral review." Under this view, a properly filed federal habeas petition does not toll the limitation period.
We believe that petitioner's interpretation of § 2244(d)(2) is correct for several reasons. To begin with, Congress placed the word "State" before "post-conviction or other collateral review" without specifically naming any kind of "Federal" review. The essence of respondent's position is that Congress used the phrase "other collateral review" to incorporate federal habeas petitions into the class of applications for review that toll the limitation period. But a comparison of the text of § 2244(d)(2) with the language of other AEDPA provisions supplies strong evidence that, had Congress intended to include federal habeas petitions within the scope of § 2244(d)(2), Congress would have mentioned "Federal" review expressly. In several other portions of AEDPA, Congress specifically used both the words "State" and "Federal" to denote state and federal proceedings. For example, 28 U.S.C. § 2254(i) (1994 ed., Supp. V) provides: "The ineffectiveness or incompetence of counsel [*173] during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." Likewise, the first sentence of 28 U.S.C. § 2261(e) (1994 ed., Supp. V) provides: "The ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings in a capital case shall not be a ground for relief in a proceeding arising under section 2254." The second sentence of § 2261(e) states: "This limitation shall not preclude the appointment of different counsel, on the court's own motion or at the request of the prisoner, at any phase of State or Federal post-conviction proceedings on the basis of the ineffectiveness [**2125] or incompetence of counsel in such proceedings." Finally, 28 U.S.C. § 2264(a)(3) (1994 ed., Supp. V) excuses a state capital prisoner's failure to raise a claim properly in state court where the failure is "based on a factual predicate that could not have been [***259] discovered through the exercise of due diligence in time to present the claim for State or Federal post-conviction review."
Section 2244(d)(2), by contrast, employs the word "State," but not the word "Federal," as a modifier for "review." It is well settled that "'where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" Bates v. United States, 522 U.S. 23, 29-30, 139 L. Ed. 2d 215, 118 S. Ct. 285 (1997) (quoting Russello v. United States, 464 U.S. 16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983)). We find no likely explanation for Congress' omission of the word "Federal" in § 2244(d)(2) other than that Congress did not intend properly filed applications for federal review to toll the limitation period. It would be anomalous, to say the least, for Congress to usher in federal review under the generic rubric of "other collateral review" in a statutory provision that refers expressly to "State" review, while denominating expressly both "State" and "Federal" proceedings in other parts of the same statute. The anomaly is underscored by the fact that the words [*174] "State" and "Federal" are likely to be of no small import when Congress drafts a statute that governs federal collateral review of state court judgments.
Further, were we to adopt respondent's construction of the statute, we would render the word "State" insignificant, if not wholly superfluous. "It is our duty 'to give effect, if possible, to every clause and word of a statute.'" United States v. Menasche, 348 U.S. 528, 538-539, 99 L. Ed. 615, 75 S. Ct. 513 (1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152, 27 L. Ed. 431, 2 S. Ct. 391 (1883)); see also Williams v. Taylor, 529 U.S. 362, 404, 146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000) (describing this rule as a "cardinal principle of statutory construction"); Market Co. v. Hoffman, 101 U.S. 112, 115, 25 L. Ed. 782 (1879) ("As early as in Bacon's Abridgment, sect. 2, it was said that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant'"). We are thus "reluctant to treat statutory terms as surplusage" in any setting. Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 698, 132 L. Ed. 2d 597, 115 S. Ct. 2407 (1995); see also Ratzlaf v. United States, 510 U.S. 135, 140, 126 L. Ed. 2d 615, 114 S. Ct. 655 (1994). We are especially unwilling to do so when the term occupies so pivotal a place in the statutory scheme as does the word "State" in the federal habeas statute. But under respondent's rendition of § 2244(d)(2), Congress' inclusion of the word "State" has no operative effect on the scope of the provision.