What a Federal Court Does to Unexhausted State Claims

A person filing a petition for a writ of habeas corpus may have exhausted all appeals through the state courts, but then realize in filing a federal habeas petition that there are unexhausted state court claims.  This may arise through the discovery of new evidence or new law is decided in another case that is applicable to one’s own case in the habeas context.  

What will the federal court do with such unexhausted claims?

When a petitioner files a “mixed” federal habeas petition that includes some exhausted claims and some unexhausted claims, the federal court must give the petitioner the choice of either amending the petition to proceed on only the exhausted claims or having the case dismissed so that the petitioner may return to state court to exhaust all the claims. Rose v. Lundy (1982) 455 U.S. 509, 520, 102 S. Ct. 1198; 71 L. Ed. 2d 379; Henderson v. Johnson (9th Cir. 2013) 710 F. 3d 872, 873; Jefferson v. Budge (9th Cir. 2005) 419 F. 3d 1013, 1015.

If some or all of the claims are unexhausted, a petitioner can request a “stay and abeyance;” if the court grants the request, it will dismiss the unexhausted claims and hold off on any further action to give the petitioner time to exhaust the claims and then amend the petition to add those claims again.  

This procedure benefits a petitioner where it would be difficult or impossible to file an amended petition within the statutory time limits.  A court has discretion to grant a stay and abeyance when “the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines v. Weber (2005) 544 U.S. 269, 277, 125 S. Ct. 1528; 161 L. Ed.2d 440; Mena v. Long (9th Cir. 2016)813 F. 3d 907, 908 (expanding stay and abeyance to cases where all claims are unexhausted); King v. Ryan (9th Cir. 2009) 564 F. 3d 1133; Olivera v. Giurbino (9th Cir. 2004) 371 F. 3d 569, 573 (failure to grant stay and abeyance was abuse of discretion); Dixon v. Baker (9th Cir. 2017) 847 F. 3d 714, 720 (same); see also Pace v. DiGuglielmo (2005) 544 U.S. 408, 416, 125 S. Ct.1807; 161 L. Ed. 2d 669 (confusion about timeliness of filing may constitute "good cause").

It merits mention that a court has no duty to advise the petitioner about the stay-and-abeyance procedure or explain how to request a stay. Pliler v. Ford (2004) 542 U.S. 225, 231, 124 S. Ct. 2441; 159 L. Ed. 2d 338; Raspberry v. Garcia (9th Cir. 2006) 448 F. 3d 1150, 1153. 

A petitioner may also be able to use a stay-and-abeyance procedure to exhaust state remedies for new issues not raised in the original federal habeas petition (or raised but dismissed for failure to exhaust) and then amend the petition to include the new issues.  The rule is that the new issues may be allowed if they “relate back” to the original petition.  Issues relate back if they arise out of the same “conduct, transaction or occurrence” challenged in the original petition. Mayle v. Felix (2005) 545 U.S. 644, 657, 125 S. Ct. 2562, 162 L. Ed. 2d 582; King v. Ryan (9th Cir.2009) 564 F. 3d 1133; Kelly v. Small (9th Cir. 2003) 315 F. 3d 1063. 

However, an issue does not relate back if the legal claim is different, even though it may concern the same testimony. Hebner v. McGrath (9th Cir. 2008) 543 F. 3d 1133, 1138.  New issues also do not relate back if they assert new grounds for relief separated in both time and type from those grounds set forth in the original pleading. Maybe, supra, 649.

In addition, a petitioner can ask for a stay to exhaust state remedies when new evidence is discovered after a federal habeas petition has already been filed.  If the petitioner could not previously have discovered the evidence through reasonable efforts, the district court should stay the proceedings to allow the petitioner to exhaust state remedies by presenting the new evidence and any new related claims in the state courts. Gonzalez v. Wong (9th Cir. 2011) 667 F. 3d 965, 977.

Another situation in which a petitioner can ask for a stay to exhaust state remedies is where they can show good cause for failure to exhaust state remedies, such as showing that post-conviction counsel was ineffective in failing to discover evidence of the petitioner's abusive upbringing and history of mental illness. Blake v. Baker (9th Cir. 2014) 745 F. 3d 977, 980-984.

A person cannot appeal a court order staying a habeas corpus proceeding pending exhaustion until after the court enters a final judgment on the habeas petition. Thompson v. Frank (9th Cir. 2010) 599 F. 3d 1088, 1090.

We wish to thank the Prison Law Office for their great treatise, California Prison and Parole Law Handbook, which this article relies heavily upon for its content.  Thank you, Prison Law Office.