United States District Court, D. Arizona
A. BOWMAN UNITED STATES MAGISTRATE JUDGE
before the court is the petitioner's motion for stay and
abeyance, filed on July 10, 2017. (Doc. 16)
petitioner, Jerry Ramon Jackson, moves that this court stay
his pending petition for writ of habeas corpus and hold it in
abeyance so he may return to state court and properly exhaust
certain claims. The respondents filed a response to the
motion for a stay on July 14, 2017. (Doc. 17) Jackson filed
his reply on July 31, 2017. (Doc. 20)
pending is the petitioner's motion for an extension of
the deadline for filing a reply to the respondents'
answer to his petition for writ of habeas corpus and an
extension of the deadline for filing a reply in support of
his motion for stay and abeyance. (Doc. 19)
pending is the petitioner's motion to amend his petition.
(Doc. 21) Jackson moves that this court permit him to amend
his petition to remove unexhausted claims if the court denies
his motion to stay. Id.
January 17, 2017, Jackson constructively filed in this court
a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (Doc. 1) The respondents filed an answer on May
22, 2017, in which they argued, among other things, that
Claims 1, 2, and 3 in the petition are procedurally
defaulted. All three of these claims allege ineffective
assistance of trial counsel in connection with a deposition
taken from one of the robbery victims. That particular victim
was unable to attend the trial, so the trial court allowed
his testimony to be admitted via deposition. In Claim 1,
Jackson argues trial counsel was ineffective for failing to
cross-examine the victim. (Doc. 1, pp. 1-11); (Doc. 1-2, p.
20) In Claim 2, he argues trial counsel was ineffective for
waiving his presence at the deposition. Id. And in
Claim 3, he argues trial counsel was ineffective for failing
to object to the admission of the deposition at trial.
Id. These claims were raised in Jackson's state
post-conviction relief (PCR) petition, but they were not
presented to the Arizona Court of Appeals.
record below indicates that when Jackson filed notice of
post-conviction relief (PCR), his counsel informed the trial
court that he was unable to find any colorable claims. (Doc.
12-12, p. 2) Jackson, therefore, filed his PCR petition pro
se. (Doc. 13, pp. 92, 95) The court presumes he was still
without counsel when he failed to file a timely petition for
review with the Arizona Court of Appeals.
pending motion, Jackson implicitly concedes that his PCR
claims were not properly exhausted. (Doc. 16) Accordingly, he
moves that this court stay his petition and hold it in
abeyance while he returns to state court and attempts to
properly exhaust these claims. Id. He maintains that
his PCR counsel told him that if his PCR petition were
denied, his next step would be to file a petition for writ of
habeas corpus in federal court. (Doc. 16, p. 2)
Rhines, the Supreme Court held that a district court
may stay a “mixed” petition and hold it in
abeyance in order to permit the petitioner an opportunity to
present unexhausted claims to the state court. See Rhines
v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005).
“Rhines cautioned, however, that its stay
procedure must not run afoul of AEDPA's twin purposes -
reducing delays in the execution of state and federal
criminal sentences and encouraging petitioners to seek relief
from state courts in the first instance.” King v.
Ryan, 564 F.3d 1133, 1139 (9th Cir. 2009)
(internal citation omitted) (punctuation modified). “To
address these concerns, Rhines held that
stay-and-abeyance is only appropriate when the district court
determines there was good cause for the petitioner's
failure to exhaust his claims first in state court.”
Id. (punctuation modified) “Furthermore,
Rhines held stays inappropriate when the unexhausted
claims are plainly meritless, or where the petitioner has
engaged in abusive litigation tactics or intentional
delay.” Id. (punctuation modified)
these issues in reverse order, the court finds no evidence
that “the petitioner has engaged in abusive litigation
tactics or intentional delay.” King, 564 F.3d
at 1139. The court further finds that the claims are not
“plainly meritless.” Id. Finally, the
court finds good cause to justify a stay. When Jackson failed
to file a timely petition for review with the Arizona Court
of Appeals he was without counsel and under the mistaken
impression that he had no further recourse in state court.
See Dixon v. Baker, 847 F.3d 714, 721
(9th Cir. 2017) (“A petitioner who is
without counsel in state post[-]conviction proceedings cannot
be expected to understand the technical requirements of
exhaustion and should not be denied the opportunity to
exhaust a potentially meritorious claim simply because he
lacked counsel.”); Pace v. DiGuglielmo, 544
U.S. 408, 416, 125 S.Ct. 1807, 1813 (2005) (“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.”) (citing
respondents argue that Jackson's “good cause”
argument would not be sufficient under Martinez to
excuse a procedural default. See Martinez v. Ryan,
566 U.S. 1, 132 S.Ct. 1309 (2012). This argument assumes that
the “good cause” showing under Rhines
must be as demanding as the “good cause” showing
under Martinez. The respondents do not explain why
this must be so. In fact, there is reason to believe the
opposite - that the “good cause” showing under
Rhines should be less demanding that the
“good cause” showing under Martinez.
After all, the “good cause” showing under
Rhines simply gives the petitioner a chance to
return to state court while a “good cause”
showing under Martinez allows a petitioner to avoid
state court review altogether. See Blake v. Baker,
745 F.3d 977, 984 (9th Cir. 2014). A “good
cause” showing under Martinez therefore
undercuts “the interests of comity and federalism
embedded in our habeas jurisprudence” in a way that a
“good cause” showing under Rhines does
respondents further argue that a stay would be futile because
the deadline for filing a petition for review with the
Arizona Court of Appeals has long since past and if one were
filed, it would surely be dismissed as untimely under
Ariz.R.Crim.P. 32.9(c). (Doc. 17, p. 3) The Rule 32 time
limits, however, are not jurisdictional, so it is possible
that Jackson's petition would be permitted. See State
v. Pope, 130 Ariz. 253, 256, 635 P.2d 846, 849 (Ariz.
1981). Whether it ultimately will be permitted is a matter
that will be decided later by the state courts.. Id.
(A “party asserting a valid reason for non-compliance
with the time requirements has a heavy burden in showing the
court why the non-compliance should be excused.”);
see also Ariz.R.Crim.P. 32.9 (c) (“Motions for
extensions of time to file petitions or cross petitions shall
be filed in and ruled upon by the trial court.”).
Accordingly, IT IS ORDERED that the petitioner's motion
for a stay of the petition for writ of habeas corpus is
GRANTED. (Doc. 16) Jackson MUST FILE by September 15, 2017 a
motion with the state trial court for permission to file a
petition for review past the deadline stated in Rule 32.9(c).
Jackson MUST FILE with this court a status report on his
progress by November 1, 2017 and subsequent reports every two
months afterwards. Failure to do so could result in a lifting
of the stay without further notice.
FURTHER ORDERED that the petitioner's motion for an
extension of the deadline for filing a reply to the
respondents' answer to his petition for writ of habeas
corpus and an extension of the deadline for filing a reply in
support of his motion for stay and abeyance is GRANTED in
PART. (Doc. 19) When Jackson's state court proceedings
are at an end, he should inform the court of this fact and
move that the court set a deadline for the respondents to
file an amended answer, if they chose to do so, and a
deadline for Jackson to file a reply to the ...