1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ADAM JAY CALDWELL, Case No. 2:24-cv-2194-WBS-JDP (P) 12 Petitioner, 13 v. ORDER; FINDINGS AND RECOMMENDATIONS 14 WARDEN,

15 Respondent. 16 17 18 Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus under 28

. ECF No. 1. Respondent moves to dismiss the petition, arguing that it contains 20 unexhausted claims. ECF No. 10. 21 On May 30, 2025, I issued my findings and recommendations, recommending that the 22 petition be dismissed because it contained unexhausted claims. ECF No. 14. I noted that 23 petitioner had failed to request a stay and abeyance under Rhines v. Weber,

, 277 24 (2005), or Kelly v. Small,

(9th Cir. 2002), and that dismissal was 25 appropriate as a result. Id. at 3-4. I informed petitioner that he could seek a stay of his petition in 26 his objections, see id. at 4 n.1, which petitioner did, see ECF No. 15. As a result, I will vacate the 27 prior findings and recommendations, but I will nevertheless grant respondent’s motion to dismiss. 28 1 Background 2 In December 2021, petitioner was sentenced to a twenty-five-years-to-life term of 3 imprisonment following a jury trial at which he was convicted of second-degree murder and 4 aggravated assault on a child resulting in a death. ECF No. 11-1; ECF No. 11-2 at 1. Petitioner 5 directly appealed his sentence and conviction. ECF No. 11-2. There, he argued that: (1) the trial 6 court erred by instructing the jury that Count 2 was a general intent crime; (2) that California 7 Penal Code § 273ab was an impermissible strict liability statute; and (3) he was entitled to 8 resentencing under Assembly Bill 518. Id. at 5-12. The state appellate court affirmed petitioner’s 9 convictions and sentence. Id. at 13. Petitioner then petitioned the California Supreme Court for 10 review, ECF No. 11-3, and the court summarily denied his petition, ECF No. 11-4. It does not 11 appear that petitioner filed any state post-conviction motions. See ECF No. 13 at 1 n.1. 12 In August 2024, petitioner filed his current habeas petition. ECF No. 1. He raises eight 13 claims, arguing that: (1) his trial counsel performed ineffectively; (2) his Miranda rights were 14 violated during his interrogation; (3) the judge violated due process by removing a lesser included 15 offense from the jury instructions; (4) his conviction for his Count 2 offense violates due process 16 because it is a strict liability offense; (5) the “death resulting” element in California Penal Code 17 § 273ab required proof of mens rea, which was not proven at trial; (6) Senate Bill 1437 requires 18 his punishment be related to a culpable mental state; (7) his sentence of twenty-five-years-to-life 19 imprisonment violates due process; and (8) the trial judge abused his discretion when choosing 20 petitioner’s sentence. Id. at 5-18. 21 Respondent moves to dismiss the petition as unexhausted, contending that Claims 1, 2, 22 and 3 were not presented to the California Supreme Court. ECF No. 10. Respondent argues that 23 the petition is mixed, meaning that unless petitioner demonstrates that a stay is appropriate, he 24 must either delete his unexhausted claims and proceed on only the exhausted ones, or the entire 25 petition must be dismissed. Id. at 3. 26 Petitioner argues that his claims are exhausted because he raised each of them with his 27 trial and appellate attorneys. ECF No. 12. In reply, respondent contends that the petition must be 28 dismissed because petitioner did not present any argument demonstrating otherwise. ECF No. 13. 1 In my findings and recommendations, I recommended that respondents’ motion to dismiss 2 be granted because petitioner failed to present any arguments demonstrating that he exhausted his 3 claims; I noted that he had failed to move for a stay and abeyance. ECF No. 14. I explained to 4 petitioner that it was not too late for him to raise the issue of staying the case, however. I 5 informed him that that he could request a stay and abeyance in his objections to my findings 6 under two theories: Id. at 3-4. First, petitioner could request a stay and abeyance under Rhines, 7 which would require him to show good cause for his failure to exhaust his claims in state court, 8 that his claims are not plainly meritless, and that he has not engaged in abusive litigation tactics. 9 Id. at 3 (citing Rhines,

). Second, petitioner could request a stay and abeyance 10 under Kelly, which would not require a showing of good cause for delay.

(citing King v. Ryan, 11

(9th Cir. 2009)). 12 Petitioner objected to the findings and recommendations. ECF No. 15. In his objections, 13 he requests a stay and abeyance under Rhines, explaining that he “ignorantly thought [his] claims 14 were exhausted” because he had raised the issues with his appellate attorneys, and that his mental 15 health contributed to his failure to exhaust his claims. Id. at 1. 16 Analysis 17 A petitioner in state custody who is proceeding with a petition for a writ of habeas corpus 18 must exhaust state judicial remedies. See

(b)(1). The exhaustion doctrine is 19 based on comity and gives the state court the initial opportunity to correct its alleged 20 constitutional deprivations. See Coleman v. Thompson,

(1991); Rose v. Lundy, 21

(1982). A petitioner can satisfy the exhaustion requirement by providing the 22 highest state court with a full and fair opportunity to consider each claim before presenting it to 23 the federal court. See O’Sullivan v. Boerckel,

(1999); Duncan v. Henry, 513

(1995). 25 Here, the state appellate court affirmed petitioner’s convictions and sentence on direct 26 appeal, see ECF No. 11-2, and the California Supreme Court denied review, see ECF No. 11-4. 27 In comparing the arguments petitioner raised in his direct appeal to his current habeas petition, it 28 1 appears that petitioner did not raise Claims 1, 2, or 3 to a state court before raising them here; he 2 did raise Claims 4 through 8. 3 When a habeas petition presents both exhausted and unexhausted claims, as appears to be 4 the case here, the petition is considered “mixed.” See Dixon v. Baker,

(9th Cir. 5 2017). Generally, “[f]ederal courts must dismiss habeas petitions that contain both exhausted and 6 unexhausted claims.” Rose,

. However, a petitioner may avoid dismissal through 7 seeking a stay and abeyance of his petition. See Butler v. Long,

(9th Cir. 8 2014). The purpose of a stay and abeyance is to give a petitioner the opportunity to exhaust his 9 claims in state court before presenting them in federal court. See Dixon,

. In 10 this circuit, two procedures for staying a petition may be available while a petitioner exhausts his 11 claims in state court. See Rhines,

; Kelly,

. 12 Petitioner seeks a stay and abeyance under the Rhines procedure. See ECF No. 15. As I 13 explained to petitioner in my prior findings, under Rhines, a stay and abeyance is available only 14 where: (1) there is “good cause” for the failure to exhaust; (2) the unexhausted claims are not 15 “plainly meritless”; and (3) the petitioner did not intentionally engage in dilatory litigation tactics. 16

. “Staying a federal habeas petition frustrates AEDPA’s objective of 17 encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings. It 18 also undermines AEDPA’s goal of streamlining federal habeas proceedings by decreasing a 19 petitioner’s incentive to exhaust all his claims in state court prior to filing his federal petition.” 20

Therefore, a “stay and abeyance should be available only in limited circumstances.”

21 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 22 exhaust.” Blake v. Baker,

(9th Cir. 2014). Although good cause under Rhines 23 does not require a showing of “extraordinary circumstances,” Jackson v. Roe,

, 661- 24 62 (9th Cir. 2005), a petitioner must do more than assert that he was “under the impression” that 25 his claim was exhausted, Wooten v. Kirkland,

(9th Cir. 2008) (declining to 26 issue a stay under Rhines because petitioner failed to demonstrate “good cause” for failure to 27 exhaust, namely that he was “under the impression” that his counsel had raised the issue). 28 “[U]nspecific, unsupported excuses for failing to exhaust—such as unjustified ignorance—[do] 1 not satisfy the good cause requirement.” Blake,

. Rather, “good cause turns on 2 whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to 3 justify” his failure to exhaust his claims.

. 4 Here, the petition should be dismissed because it contains unexhausted claims, and 5 petitioner has not demonstrated that he is entitled to a stay and abeyance under Rhines. As 6 already established, the current petition is mixed. To avoid dismissal, petitioner claims that he is 7 entitled to a stay and abeyance under Rhines, see ECF No. 15, but his arguments fail to meet 8 Rhines’ standards because he has not demonstrated good cause for his failure to exhaust. 9 Petitioner’s arguments are similar to those made in Wooten, since petitioner contends that he was 10 under the impression that he had exhausted his claims by raising them with his appellate attorney. 11 See

However, petitioner merely being “under the impression” that he exhausted his claims is 12 not good cause under Rhines. See Wooten,

. And his unjustified ignorance does 13 not establish good cause. Blake,

. Because petitioner cannot establish good cause 14 under Rhines, he is not entitled to a stay and abeyance. His petition should be dismissed without 15 prejudice. 16 Accordingly, it is hereby ORDERED that the prior findings and recommendations, ECF 17 No. 14, are VACATED. 18 Further, it is also RECOMMENDED that: 19 1. The petition, ECF No. 1, be DISMISSED without prejudice. 20 2. Respondent’s motion to dismiss, ECF No. 10, be GRANTED. 21 3. The court decline to issue the certificate of appealability referenced in 28 U.S.C. 22 § 2253; and 23 4. The Clerk of Court be directed to close this case and to enter judgment accordingly. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of

(b)(l). Within fourteen days of 26 service of these findings and recommendations, any party may file written objections with the 27 court and serve a copy on all parties. Any such document should be captioned “Objections to 28 Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 1 | within fourteen days of service of the objections. The parties are advised that failure to file 2 | objections within the specified time may waive the right to appeal the District Court’s order. See 3 | Turner v. Duncan,

, 455 (9th Cir. 1998); Martinez v. Yist,

(9th Cir. 4 1991). 5 6 IT IS SO ORDERED.

Dated: _ June 11, 2025 q——— 8 JEREMY D. PETERSON 9 UNITED STATES MAGISTRATE JUDGE

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