REPORT AND RECOMMENDATION ON THE WARDEN'S MOTION TO DISMISS HABEAS PETITION AND PETITIONER AGUON'S REQUEST FOR A STAY
ANDREW G. SCHOPLER, Magistrate Judge.
The habeas corpus petition here includes legal claims that cannot be heard in federal court, because the state courts have never ruled on them. So, it must be stayed or dismissed.
Petitioner Michael Aguon was convicted of first-degree murder. On direct appeal, an intermediate court affirmed the judgment, and the California Supreme Court declined review on June 24, 2015. (ECF No. 11-3.) Aguon's one-year period for filing a federal habeas petition started 90 days later, on September 22, 2015.
Generally, a federal court must "dismiss a petition for a writ of habeas corpus containing any claims that have not been exhausted in the state courts." Rose v. Lundy, 455 U.S. 509, 510 (1982); see also 28 U.S.C. § 2254(b)(1)(A). But the court may stay the petition while the prisoner exhausts state court remedies. Such a stay should be granted when: (1) "the petitioner has good cause for the failure to exhaust;" (2) the "unexhausted claims are potentially meritorious" (or at least not "plainly meritless"); and (3) "there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
Aguon requests a stay, so this Court must consider that option before turning to the warden's motion to dismiss.
Good Cause for Failure to Exhaust
"There is little authority on what constitutes good cause to excuse a petitioner's failure to exhaust." Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). But the outer limits are well-established. "While a bald assertion cannot amount to a showing of good cause, a reasonable excuse, supported by evidence to justify a petitioner's failure to exhaust, will." Id. at 982.
Aguon goes beyond bald assertions, offering specific reasons for failing to first exhaust his state court remedies:
On the whole, these reasons are reasonable, supported by the petitioner's verification under penalty of perjury (ECF No. 1, at 15; ECF No. 12, at 7), and sufficiently establish good cause.
Unexhausted Claim(s) Are Not Plainly Meritless
"A federal habeas petitioner must establish that at least one of his unexhausted claims is not `plainly meritless' in order to obtain a stay under Rhines." Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 2017). A claim is "plainly meritless" if "it is perfectly clear that the petitioner has no hope of prevailing." Id. (citation omitted).
In one of his unexhausted claims, Aguon asserts that officers improperly testified at trial—"based on record checks"—that Aguon and others were Lomita Village gang members. (ECF No. 1, at 7.) This gang-membership evidence was allegedly premised on the testimonial hearsay of individuals who Aguon never had the opportunity to cross-examine, thereby violating his confrontation rights under Crawford v. Washington, 541 U.S. 36 (2004). (ECF No. 1, at 7.) It is unclear whether the record checks actually included testimonial hearsay or what role they may have played in Aguon's trial. But the Court need not reach those issues. The only question is whether it is "perfectly clear" that Aguon has "no hope of prevailing." Based on the current record, his defeat is not certain. So, this claim is not plainly meritless.
No Intentionally Dilatory Litigation Tactics
Finally, there is no indication that Aguon engaged in "abusive litigation tactics or intentional delay," which would disqualify him from obtaining a stay. See Rhines, 544 U.S. at 278.
Since all three prerequisites are met, Aguon is entitled to a Rhines stay.
Thus, this Court
Upon being served with a copy of this report, the parties have 14 days to file any objections. Upon being served with any objections, the party receiving such objections has 14 days to file any response. See Fed. R. Civ. P. 72(b)(2).