(DP)(HC) Bunyard v. Davis, No. 2:2015cv01790 - Document 58 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/19/18 RECOMMENDING that petitioner's motion for stay and abeyance 51 be granted, and that respondent's motion to dismiss 45 be denied as moot. Motions 45 and 51 referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, M)
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(DP)(HC) Bunyard v. Davis Doc. 58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY BUNYARD, 12 Petitioner, 13 14 No. 2:15-cv-01790 WBS AC DP DEATH PENALTY CASE v. RON DAVIS, Warden, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 On December 6, 2017, the court held a hearing on respondent’s motion to dismiss (ECF 17 18 No. 45) and petitioner’s motion to stay (ECF No. 51). Appointed counsel Saor E. Stetler and 19 Richard G. Novak appeared on behalf of petitioner. Deputy Attorney General Robert C. Nash 20 appeared for respondent. Having considered the briefing of the parties, the arguments presented 21 at hearing, and the record of this case as a whole, the court finds as follows. 22 23 I. Background and Procedural History Petitioner was initially sentenced to death in 1981 following his conviction of first-degree 24 murder with special circumstances. On appeal, the California Supreme Court affirmed the 25 conviction but reversed the death sentence on grounds of instructional error. People v. Bunyard, 26 45 Cal. 3d 1139 (1988). Petitioner was sentenced to death a second time following penalty 27 retrial, and the California Supreme Court affirmed the result on February 23, 2009. People v. 28 Bunyard, 45 Cal. 4th 836 (2009). 1 Dockets.Justia.com 1 A state petition for writ of habeas corpus was filed on October 9, 2007. The California 2 Supreme Court denied the petition on June 24, 2015. In re Bunyard, No. S157098, 2015 Cal. 3 LEXIS 4615 (June 24, 2015). 4 Proceedings in this court commenced on August 24, 2015, and counsel were appointed on 5 August 31, 2015. After being granted prospective equitable tolling of sixty-eight days (ECF Nos. 6 33, 38), petitioner filed a 43-claim petition for writ of habeas corpus on August 31, 2016. ECF 7 No. 44. 8 On July 6, 2017, respondent filed a motion to dismiss the petition on grounds it contains 9 both exhausted and unexhausted claims. ECF No. 45. Respondent identified 23 claims as 10 unexhausted. Id.1 On August 23, 2017, petitioner filed a habeas petition in the California 11 Supreme Court containing the claims that respondent had identified in this court as unexhausted. 12 ECF No. 51-2. In light of the pendency of the state exhaustion petition, petitioner seeks a stay 13 and abeyance of federal proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (1995). ECF No. 14 51. 15 II. 16 Governing Legal Principles Habeas petitioners are required to exhaust state remedies before seeking relief in federal 17 court. 28 U.S.C. § 2254(b). The exhaustion doctrine ensures that state courts will have a 18 meaningful opportunity to consider allegations of constitutional violation without interference 19 from the federal judiciary. Rose v. Lundy, 455 U.S. 509, 515 (1982). Exhaustion requires fair 20 presentation of the substance of a federal claim to the state courts. Picard v. Connor, 404 U.S. 21 1 22 23 24 25 26 27 28 Respondent contends that the following claims are unexhausted because, although the asserted errors were raised previously in state court, the present (federal constitutional) legal basis was not fairly presented to the state court: Claims 1, 2, 3, 5, 6, 7, 8, 10, 14, 16, 22. Respondent contends that the following claims are unexhausted because, although raised previously in state court, they were exhausted in a different context and not as freestanding claims for relief: Claims 4, 12, 14 and 33. Respondent contends that the following claims are unexhausted because, although they were presented in a different form in state court, expanded factual allegations render them unexhausted as pled in the federal petition: Claims 30, 33, 37, 39, 42. Respondent contends that the following claims are unexhausted because they were not presented at all to the California Supreme Court: Claims 35, 36, 40. Respondent also contends that Claim 38 (petitioner is ineligible for death sentence due to his mental impairments) is non-cognizable because state remedies remain available. 2 1 270, 276, 278 (1971). In order to exhaust state remedies, a federal claim must be presented to the 2 State’s highest court. Castille v. Peoples, 489 U.S. 346 (1989). 3 Federal district courts may not adjudicate petitions for habeas corpus which contain both 4 exhausted and unexhausted claims. Rose, 455 U.S. at 518-19. However, that does not mean that 5 a mixed petition must be dismissed. After the enactment of the AEDPA and its creation of a one- 6 year statute of limitations for filing federal habeas petitions in 1996, the Supreme Court 7 recognized the procedural trap that is created by the total exhaustion rule. “As a result of the 8 interplay between AEDPA’s 1-year statute of limitations and Lundy’s dismissal requirement, 9 petitioners who come to federal court with ‘mixed’ petitions run the risk of forever losing their 10 opportunity for any federal review of their unexhausted claims.” Rhines, 544 U.S. at 275. To 11 prevent that outcome in appropriate cases, the Court held that a federal petition containing both 12 exhausted and unexhausted claims may be stayed if (1) petitioner demonstrates good cause for the 13 failure to have first exhausted the claim(s) in state court, (2) the claim or claims at issue 14 potentially have merit, and (3) petitioner has not been dilatory in pursuing the litigation. Rhines, 15 544 U.S. at 277-78. 16 Because the Supreme Court emphasized that district courts should stay mixed petitions 17 only in “limited circumstances,” Rhines, 544 U.S. at 277, the Ninth Circuit has rejected a “broad 18 interpretation of ‘good cause.’” Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008), cert. 19 denied, 556 U.S. 1285 (2009). However, the Rhines “good cause” standard does not require a 20 showing of extraordinary circumstances. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). 21 “The good cause element is the equitable component of the Rhines test. It ensures that a stay and 22 abeyance is available only to those petitioners who have a legitimate reason for failing to exhaust 23 a claim in state court. As such, good cause turns on whether the petitioner can set forth a 24 reasonable excuse, supported by sufficient evidence, to justify that failure.” Blake v. Baker, 745 25 F.3d 977, 982 (9th Cir. 2014). Accordingly, good cause is not shown where the petitioner created 26 the condition that led to the failure to exhaust. See Wooten, 540 F.3d at 1024. 27 28 III. Petitioner’s Motion for Stay and Abeyance The court first considers petitioner’s motion, because if a stay is appropriate it will be 3 1 unnecessary to resolve the parties’ disputes about which claims are presently unexhausted. 2 Because it is undisputed that the petition is mixed, a showing of good cause for a stay to permit 3 exhaustion of any unexhausted claim will support a stay of these proceedings as a whole. See 4 Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 2017) (to satisfy Rhines, petitioner must establish 5 that at least one unexhausted claim is not plainly meritless). 6 A. Petitioner Has Satisfied the Rhines Criteria Regarding Claim 35 7 Claim 35 alleges that petitioner’ constitutional rights have been violated by California’s 8 system of appointing private post-conviction counsel, and provision of funding and resources to 9 private counsel that are both objectively inadequate and disparate in comparison to the resources 10 available to death-sentenced inmates represented by public agencies. ECF No. 44 at 370-72. 11 Petitioner acknowledges that this claim was not exhausted prior to commencement of the federal 12 habeas action; it is included in the exhaustion petition now pending in the California Supreme 13 Court. 14 15 1. Petitioner Has Demonstrated Good Cause for His Previous Failure to Exhaust “Good cause” under Rhines is a lesser standard than “extraordinary circumstances.” 16 Jackson, 425 F.3d at 662. A “reasonable excuse, supported by evidence to justify a petitioner’s 17 failure to exhaust,” will demonstrate good cause. Blake, 745 F.3d at 982. Petitioner has satisfied 18 this standard. 19 Petitioner first makes the common-sense argument that this claim could not have been 20 included in his first state habeas petition because it did not arise until conclusion of that 21 proceeding. That is quite correct. The alleged violation did not occur, or was not complete, until 22 the California Supreme Court summarily denied the first state petition and, with it, petitioner’s 23 previously unadjudicated request for additional funding. Although the existence of a potential 24 claim based on systemic habeas funding disparities may have been apparent earlier, that claim 25 was not ripe and could not have been presented in the fully-developed form required for 26 exhaustion until petitioner was denied resources and experienced the consequences of 27 California’s system of post-conviction appointments and funding. 28 Moreover, Claim 35 encompasses the state capital appellate process as well as state 4 1 habeas. Petitioner could not have included claims challenging the appellate process in his first 2 state habeas petition, because the habeas petition was due before the appeal had concluded. 3 California requires the habeas petition to be filed within 180 days of the reply brief on direct 4 appeal. Rule 1-1.1, Supreme Court Policies Regarding Cases Arising from Judgments of Death. 5 Petitioner’s state habeas petition was timely filed in 2007, before the direct appeal had been 6 argued or decided. 7 Petitioner also argues persuasively that California does not provide a process by which to 8 address the issues raised in Claim 35, and that the informal process which is available is 9 ineffective. Petitioner has identified the attempts he made to raise the funding issue, which were 10 ignored by the California Supreme Court. See ECF No. 49 at 30-31. To the extent that California 11 process was unclear regarding the proper avenue for relief, petitioner had good cause for his 12 failure to exhaust. Cf. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (noting that a petitioner 13 who pursues state remedies in good faith where availability of remedy is unclear will have 14 established cause for a stay under Rhines). 15 On the other hand, to the extent that petitioner’s previous counsel might have but failed to 16 raise the issue, that failure independently constitutes good cause. See Blake, 745 F.3d at 983 17 (ineffective assistance of post-conviction counsel constitutes good cause under Rhines). 18 Numerous district courts have found cause under Rhines based on allegations that state post- 19 conviction counsel performed deficiently in failing to identify or develop claims. See Riner v. 20 Crawford, 415 F. Supp. 2d 1207, 1210-11 (D. Nev. 2006) (collecting cases). Claim 42 of the 21 federal petition (which respondent also contends is unexhausted, and which is also now pending 22 in state court) alleges the ineffective assistance of former state habeas counsel in failing to fully 23 develop and present all claims. ECF No. 44 at 434-36. The allegations of Claim 42 are sufficient 24 to establish cause for failure to exhaust Claim 35. 25 26 2. The Claim Is Not “Plainly Meritless” The merit inquiry under Rhines turns on whether petitioner has presented a colorable 27 claim, not whether he is likely to prevail. See Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 28 2011). This standard is satisfied where the claim is not “plainly meritless.” Dixon, 847 F.3d at 5 1 720. In an analogous context, the Ninth Circuit has stated that a habeas claim is not “plainly 2 meritless” unless “it is perfectly clear that the petitioner has no hope of prevailing.” Cassett v. 3 Stewart, 406 F.3d 614, 624 (9th Cir. 2005). The appellate court has expressly adopted this 4 formulation in the Rhines context. Dixon, 847 F.3d at 722. Respondent’s argument on the merits 5 of Claim 35, ECF No. 54 at 8-9, raises questions about the merits of the claim but does not 6 demonstrate that it is “plainly meritless.” To the contrary, the existence of serious questions 7 going to the merits indicates that litigation is required and should not be foreclosed. 8 9 Respondent contends summarily that Claim 35 is not cognizable because it involves a state procedural issue that cannot provide a basis for federal habeas relief. Id. This theory begs 10 many extremely complicated legal issues that plague both the state’s death penalty apparatus 11 itself and federal review of those issues. California’s system for capital post-conviction litigation 12 has been widely, and for a great many years now, decried as broken. See Arthur L. Alarcón & 13 Paula M. Mitchell, Executing the Will of the Voters?: A Roadmap to Mend or End the California 14 Legislature’s Multi-Billion-Dollar Death Penalty Debacle, 44 Loy. L.A. L. Rev. S41, S61 (2011) 15 (describing California’s “broken” death penalty system); California Commission on the Fair 16 Administration of Justice, Report and Recommendations on the Administration of the Death 17 Penalty in California (“Commission Report”) (2008) at 114 (declaring California’s death penalty 18 system to be “dysfunctional”); Ronald M. George, Reform Death Penalty Appeals, L.A. Times, 19 Jan. 7, 2008 (describing California process of post-conviction review as “dysfunctional”).2 20 The constitutional questions presented by this state of affairs are extremely serious. See, 21 generally, Jones v. Chappell, 31 F. Supp. 3d 1050, 1057-1058 (C.D. Cal. 2014) (broadly declaring 22 California’s death penalty system unconstitutional), overruled by Jones v. Davis, 806 F.3d 538 23 (9th Cir. 2015).3 The appointment of private counsel and related funding limitations, which form 24 the basis for petitioner’s Claim 35, have been recognized as integral to the inability of the state 25 system to provide adequate review. See Jones, 31 F. Supp. 3d at 1057-1058 (describing two- 26 2 27 28 The author is the former Chief Justice of the California Supreme Court. The claim at issue in Jones addressed a different aspect of the state post-conviction review process than Mr. Bunyard’s Claim 35, so the Ninth Circuit’s ultimate rejection of the Jones claim cannot be dispositive of the matter before this court. 6 3 1 tiered system of public agency and private appointments, and funding problems facing private 2 appointed counsel in California death penalty cases, as contributing factors to systemic and 3 excessive delay in state post-conviction review); see also Arthur L. Alarcón, Remedies for 4 California’s Death Row Deadlock, 80 S. Cal. L. Rev. 697, 738 (2007) (addressing appointment 5 procedures and underfunding issues as factors contributing to systemic dysfunction in capital 6 post-conviction process); Commission Report at 135 (describing the below-market rates at which 7 appointed habeas counsel are paid, and the low cap on funds made available to conduct habeas 8 investigations and retain necessary experts). 9 Whether petitioner can successfully establish a violation of the Constitution, and the 10 availability of federal habeas relief, are questions for another day. At this stage, the undersigned 11 cannot conclude that the claim is plainly meritless. The “cognizability” argument that respondent 12 raises in a single paragraph, relying on general principles, would itself require extensive briefing 13 to adjudicate. Nothing in Rhines requires such resolution of complicated merits-related questions 14 at this stage. To the contrary, where a claim has arguable merit a stay should issue so that the 15 state may address the claim substantively and then, if state relief is denied, this court can tackle 16 the many thorny issues presented. See Gonzalez, supra. 17 18 3. Petitioner Has Not Been Dilatory Petitioner brought this claim reasonably promptly upon conclusion of state habeas 19 proceedings. The time taken by newly-appointed federal habeas counsel to identify claims, 20 develop evidence, and prepare the federal petition – including previously unexhausted claims – 21 was well within the norm. In granting a brief period of equitable tolling, this court previously 22 determined that petitioner had diligently pursued his federal rights through the filing of the 23 federal petition. ECF Nos. 33 (Findings and Recommendations) at 4-5, 38 (Order adopting 24 Findings and Recommendations). 25 Moreover, contrary to respondent’s argument, it was entirely reasonable for petitioner’s 26 counsel to wait until respondent made a record of its position on non-exhaustion to file the 27 anticipated exhaustion petition in the California Supreme Court. See Kennedy v. Warden, No. 28 2:13-cv-2041 KJM KJN DP, 2015 WL 6502285, 2015 U.S. Dist. LEXIS 145777 (E.D. Cal. Oct. 7 1 27, 2015) (reasonable for petitioner to wait until unexhausted claims were identified by federal 2 court before filing state exhaustion petition), adopted in full, 2016 WL 1573118, 2016 U.S. Dist. 3 LEXIS 52439 (Apr. 19, 2016). California’s law of habeas procedure, like federal habeas law, 4 disfavors where it does not outright ban the piecemeal submission of claims. See In re Clark, 5 5 Cal. 4th 750 (1993). Accordingly, it was incumbent upon petitioner to not submit an exhaustion 6 petition until he learned what universe of claims required further exhaustion (at least in 7 respondent’s view). 8 9 The once-common prophylactic tactic of submitting the entire federal habeas petition to the California Supreme Court at the time of federal filing may have had the advantage of 10 generating a prompt filing date for the exhaustion petition, but the California Supreme Court has 11 long since put an end to the practice. See In re Reno, 55 Cal. 4th 428, 443 (2012) (presentation in 12 state court of exhaustion petition identical to the “mixed” federal petition constitutes abuse of the 13 writ). Accordingly, federal habeas counsel cannot be faulted for failing to take this route. Given 14 the conflicting demands of state and federal practice, petitioner’s “delay” in filing an exhaustion 15 petition cannot be construed as dilatory. 16 The undersigned further finds that the time between respondent’s identification of 17 arguably unexhausted claims in his motion to dismiss, and petitioner’s filing of his exhaustion 18 petition in the state court, was reasonable. Nothing in the record indicates that petitioner has 19 engaged in “intentionally dilatory litigation tactics,” Rhines, 544 U.S. at 278, either prior to or 20 after filing of the federal petition. Accordingly, the undersigned concludes that petitioner acted 21 with diligence sufficient to satisfy the final prong of the Rhines standard as to Claim 35. 22 B. Petitioner Has Also Satisfied the Rhines Criteria Regarding Claim 33 23 Although petitioner’s stay motion focuses on Claim 35 by way of example, he contends 24 more broadly that resource limitations and the ineffective assistance of state post-conviction 25 counsel establish cause for his failure to exhaust all unexhausted claims; that all such claims have 26 potential merit; and that he has not been dilatory with regard to any newly asserted claims. ECF 27 No. 51 at 1. The court agrees that petitioner’s showing of cause and lack of dilatory conduct, 28 detailed above, apply generally to the claims and subclaims that have been challenged by 8 1 respondent as unexhausted. In further support of the recommendation for a stay, the undersigned 2 will briefly explain why Claim 33, which alleges that petitioner was mentally incompetent during 3 trial and throughout appellate and state habeas proceedings (see ECF No. 44 at 309-19), also 4 meets the Rhines standards. 5 Petitioner’s first state habeas petition contained an incompetence claim, but respondent 6 contends that the claim presented to this court is rendered unexhausted by the addition of 7 allegations regarding petitioner’s mental state during the entirety of state post-conviction 8 proceedings. ECF No. 45 at 35. As noted above, petitioner was required by state court rules to 9 file his first state habeas petition during the pendency of his direct appeal. Since neither the state 10 appellate process nor the state habeas process had been completed, he could not then have alleged 11 incompetence throughout those proceedings. 12 Petitioner did assert in state court at the time of filing that he was then incompetent. See 13 ECF No. 25-1 (2007 state petition) at AGO 19746, 19808. This demonstrates that he was not 14 withholding the issue of his competence in order to inject delay by raising it later. However, 15 respondent reasonably argues in the exhaustion context that petitioner’s assertions were 16 insufficient to alert the California Supreme Court to a claim that his federal constitutional rights 17 were violated by his incompetence throughout the course of post-conviction proceedings. Such a 18 claim was not ripe until post-conviction proceedings continued and reached a conclusion despite 19 petitioner’s continuing incompetence – that is the basis of the claim here. This practical context, 20 particularly in light of the California rule against piecemeal presentation of claims, provides a 21 reasonable explanation for petitioner’s failure to previously exhaust. These considerations satisfy 22 the good cause and dilatory tactics prongs of Rhines. 23 Petitioner’s extensive evidentiary showing in support of his incompetence claim 24 demonstrates that the claim is not plainly meritless. See ECF No. 44 at 312-319 and referenced 25 exhibits. Petitioner has submitted expert evaluations, mental health and correctional records, and 26 social history documentation to support his allegations of mental impairment. Id. It is well- 27 established that trial while mentally incompetent violates a defendant’s constitutional rights. Pate 28 v. Robinson, 383 U.S. 375 (1966); Drope v. Missouri, 420 U.S. 162, 171 (1975). Petitioner’s 9 1 showing directly addresses the competence standards articulated by the Supreme Court in Pate 2 and Drope, and thus states a colorable claim. 3 Whether the ongoing incompetence of a death-sentenced inmate during state post- 4 conviction review provides a further basis for federal habeas relief is a non-frivolous issue. The 5 Ninth Circuit has observed that while a substantive constitutional claim based on incompetence 6 during post-conviction proceedings is “debatable,” it nonetheless raises “substantial” 7 constitutional questions. See Gates v. Woodford (Rohan ex rel. Gates), 334 F.3d 803, 814 (9th 8 Cir.), cert. denied, 540 U.S. 1069 (2003). While the U.S. Supreme Court subsequently abrogated 9 Gates in Ryan v. Gonzales, 568 U.S. 57 (2013), its criticism on this point was based on the 10 absence of a constitutional right to counsel in the habeas context. Gonzales, 568 U.S. at 66-67.4 11 The constitutional right to counsel on direct appeal, however, is indisputable. Evitts v. Lucey, 12 469 U.S. 387 (1985). Accordingly, that portion of Claim 33 involving direct review is unaffected 13 by Gonzales. This court finds that even if “debatable,” it presents a substantial question. To the 14 limited extent the claim involves state habeas review, it presents complicated questions that defy 15 facial categorization as “plainly meritless.”5 16 In any case, the question under Rhines is whether the claim at issue has potential merit, 17 see Dixon, 847 F.3d at 722, not whether discrete allegations within a claim can independently 18 support federal habeas relief. Claim 33 is not “plainly meritless” as a whole, and it was 19 previously unexhausted for legitimate reasons rather than because petitioner intentionally 20 delayed. Accordingly, Rhines is satisfied. 21 C. Stay and Abeyance Is Appropriate 22 The court need not determine whether a Rhines stay is appropriate as to each of the claims 23 now pending in the California Supreme Court. “One claim requiring a stay acts as an umbrella 24 for all claims.” Horning v. Martel, No. 2:10-cv-1932 JAM GGH DP, 2011 WL 5921662, 2011 25 4 26 27 28 The Ninth Circuit had implied a right to competence from the right to counsel. Gates, 334 F.3d at 813. The Supreme Court found this was error where the right to counsel was statutory rather than constitutional. Gonzales, 568 U.S. at 67. 5 Gonzales limited the Ninth Circuit’s practice of indefinitely staying federal habeas cases on a showing of incompetence. Accordingly, it is not directly dispositive of substantive claims for relief based on incompetence during state court proceedings. 10 1 U.S. Dist. LEXIS 136725 (E.D. Cal. Jan. 19, 2012) (findings and recommendations), adopted in 2 full 2012 WL 163784, 2012 U.S. Dist. LEXIS 6282 (Jan. 19, 2012). Because petitioner has 3 satisfied Rhines as to at least two claims, the instant proceeding should be stayed and held in 4 abeyance until the California Supreme Court has acted on the exhaustion petition. 5 This result is consistent with that in several other capital habeas cases now pending in this 6 district, in which stays pending exhaustion have been granted. See, e.g., Horning, supra; Whalen 7 v. Warden, Cal. State Prison, No. 1:14-cv-1865 LJO SAB DP, 2016 U.S. Dist. LEXIS 52495 8 (E.D. Cal. Apr. 19, 2016) (finding good cause based on ineffective assistance of counsel and 9 claims that claims were potentially meritorious, including claim that California’s death penalty 10 scheme is unconstitutional); Kennedy v. Warden, No. 2:13-cv-2041 KJM KJN DP, 2015 WL 11 6502285, 2015 U.S. Dist. LEXIS 145777 (E.D. Cal. Oct. 27, 2015) (finding good cause based on 12 ineffective assistance of counsel and California Supreme Court’s denial of post-petition request 13 for additional investigative funds, and that it was reasonable for petitioner to wait until 14 unexhausted claims were identified by federal court before filing state exhaustion petition), 15 adopted in full, 2016 WL 1573118, 2016 U.S. Dist. LEXIS 52439 (Apr. 19, 2016); Clark v. 16 Chappell, No. 12-cv-0803 LJO DP, 2013 WL 4500474, 2013 U.S. Dist. LEXIS 119685 (E.D. 17 Cal. Aug. 22, 2013) (finding good cause based on ineffective assistance of counsel); Perry v. 18 Chappell, No. 1:11-cv-1367 AWI DP, 2013 U.S. Dist. LEXIS 100834 (E.D. Cal. July 18, 2013) 19 (finding claims not plainly meritless based on facial examination and good cause based on lack of 20 funding in state court). 21 IV. 22 Respondent’s Motion to Dismiss Because a stay pending exhaustion is appropriate for the reasons explained above, 23 respondent’s motion to dismiss on exhaustion grounds should be denied as moot. There is no 24 reason for this court to expend the judicial resources necessary to address all 23 of respondent’s 25 non-exhaustion arguments (see n. 1, infra), because the California Supreme Court currently has 26 before it all 23 of the disputed claims. Accordingly, all claims in the federal petition will be fully 27 exhausted at the conclusion of the state court’s review. 28 //// 11 1 2 CONCLUSION For the reasons explained above, IT IS HEREBY RECOMMENDED that petitioner’s 3 motion for stay and abeyance (ECF No. 51) be GRANTED, and that respondent’s motion to 4 dismiss (ECF No. 45) be DENIED as moot. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteeen days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 10 objections shall be served and filed within seven days after service of the objections. The parties 11 are advised that failure to file objections within the specified time may waive the right to appeal 12 the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 DATED: November 19, 2018 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12