Friday, March 14, 2014

Blake v. Baker, No. 12-15522 (Tashima with Fletcher & Nguyen)
This opinion contributes to an area of federal habeas law on which there are few published decisions from any circuit -- the circumstances in which a habeas petitioner may return to state court under Rhines v. Weber, 544 U.S. 269 (2005), to exhaust claims presented in a mixed § 2254 petition.  In this death penalty case, the petitioner filed a mixed petition containing an unexhausted claim of penalty-phase ineffective assistance of counsel.  The petitioner presented a host of evidence to the district court that went undiscovered both by counsel at the time of sentencing and by state habeas counsel.  Because state habeas counsel neglected to raise this claim in state court, it was unexhausted in the § 2254 proceedings.  But because the petitioner presented other, exhausted claims in his petition, he was eligible for a Rhines stay so he could return to state court and exhaust the claim.  In order to qualify, however, he had to show "good cause" for failing to exhaust it, and he argued that state habeas counsel's failure to raise the claim amounted to good cause.  Cf. Martinez v. Ryan, 132 S. Ct. 1309 (2012).  The district court disagreed, holding that ineffective assistance of state habeas counsel could never qualify as good cause to return to state court; it then dismissed the mixed § 2254 petition pursuant to Rose v. Lundy, 455 U.S. 509 (1982).  The Ninth Circuit reversed.  The petitioner made more than a "bare allegation" of ineffective assistance of state habeas counsel; he instead documented state habeas counsel's failures to discover a wealth of mitigating evidence that should have been presented.  This went to the potential merit of the unexhausted penalty-phase ineffective-assistance claim and to showing that there was no intentional delay in litigation.  Moreover, the panel held that a showing cause under Martinez should be sufficient to show entitlement to a stay under Rhines.
Congratulations to AFPD Tiffani Hurst of Nevada.



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