Tully v. Davis

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 RICHARD TULLY, Case No. 18-cv-04763-EMC 8 Plaintiff, ORDER GRANTING PETITIONER’S 9 v. REQUEST FOR STAY AND ABEYANCE 10 RON DAVIS, Docket No. 27 11 Defendant. — 12 — 13 Petitioner Richard Tully, a condemned prisoner at California’s San Quentin State Prison, 14 has filed a federal habeas petition containing 114 claims. See Docket No. 26. Petitioner and 15 Respondent agree that Claims 103, 104, 106, 109, 110, and 114 are unexhausted. See Docket No. 16 36 at 2. Petitioner has filed a state court petition for writ of habeas corpus in to order exhaust 17 these claims. See Docket No. 25. In addition, pursuant to Rhines v. Weber, 544 U.S. 269 , 278 18 (2005), Petitioner has filed the instant Motion to Hold Federal Habeas Proceedings in Abeyance 19 While the State Exhaustion Petition is Pending (Docket No. 27). Respondent opposes Petitioner’s 20 request for stay and abeyance, arguing that Petitioner has not shown that his unexhausted claims 21 are potentially meritorious. 22 For the following reasons, Petitioner’s motion for stay and abeyance is GRANTED. 23 I. BACKGROUND 24 In 1992, a jury convicted Petitioner of first-degree murder and assault with intent to 25 commit rape and found true the special circumstances that Petitioner committed the murder while 26 engaged in the commission of a burglary and that he used a dangerous weapon, a knife, in the 27 commission of both offenses. Petitioner was sentenced to death. The California Supreme Court 1 Supreme Court denied certiorari review. Tully v. California, 568 U.S. 1175 (2013). 2 On March 16, 2011, while his direct appeal was pending in the California Supreme Court, 3 Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The 4 California Supreme Court denied the petition on June 20, 2018. In re Tully, No. S191449. 5 On August 7, 2018, Petitioner initiated the instant federal habeas action by asking this 6 Court to appoint counsel and stay his execution. See Docket No. 1. On April 17, 2019, the Court 7 entered an Order (Docket No. 20) granting Petitioner’s request for equitable tolling of the one-year 8 statute of limitations set forth in 28 U.S.C. § 2244 (d)(1), thereby making Petitioner’s federal 9 habeas petition due September 13, 2019. On August 30, 2019, Petitioner filed his second petition 10 for writ of habeas corpus in the state court, which presents the unexhausted claims alleged in 11 Petitioner’s federal petition. See Docket No. 25. Simultaneous with his filing of his federal 12 petition, on September 8, 2019, Petitioner filed the instant motion for a stay of this case. 13 Respondent filed an opposition (Docket No. 34) on September 23, 2019, and Petitioner has filed a 14 reply (Docket No. 35). 15 Petitioner seeks stay and abeyance of this case so that he may exhaust the following claims 16 in his federal petition: a) Claim 103 – Petitioner’s claim that California’s capital sentencing 17 scheme unconstitutionally deprived him of a beyond a reasonable doubt jury determination of 18 every fact necessary to sentence him to death; b) Claim 104 – Petitioner’s claim that California’s 19 capital punishment system violates the Eighth Amendment due to its “variability” in selecting 20 condemned inmates to be executed and the excess delay that attends litigation of capital sentences; 21 c) Claim 106 – Petitioner’s claim that California’s capital post-conviction review process is 22 unconstitutional; d) Claim 109 – Petitioner’s claim that, as made clear by recent events, society’s 23 “evolving standards of decency” have rendered California’s death penalty scheme 24 unconstitutional; e) Claim 110 – Petitioner’s claim that California’s clemency procedure is 25 unconstitutional; and f) Claim 114 – Petitioner’s claim that cumulative error has resulted in a 26 denial of his due process rights and warrants issuance of the writ of habeas corpus even if no 27 individual error justifies relief on its own. 1 II. LEGAL STANDARD 2 A federal court may not grant habeas relief until a petitioner has exhausted available state 3 remedies with respect to each claim. 28 U.S.C. § 2254 (b); Picard v. Connor, 404 U.S. 270 , 272 4 (1971). A federal constitutional claim is exhausted when it has been “fairly presented” to the 5 highest state court and that court has had a meaningful opportunity to apply controlling legal 6 principles to the facts underlying the claim. Picard, 404 U.S. at 276-77 . 7 The Supreme Court follows a rule of “total exhaustion,” requiring that all claims in a 8 habeas petition be exhausted before a federal court may grant the petition. Rose v. Lundy, 455 9 U.S. 509, 522 (1982). A district court is permitted, however, to stay a mixed petition containing 10 both exhausted and unexhausted claims so that the petitioner may exhaust his claims in state court 11 without running afoul of the one-year statute of limitations imposed by the Antiterrorism and 12 Effective Death Penalty Act of 1996 (“AEDPA”). Rhines, 544 U.S. at 273-75 . A district court 13 must stay a mixed petition if: (1) the petitioner has good cause for his failure to exhaust his claims, 14 (2) the unexhausted claims are potentially meritorious, and (3) there is no indication that the 15 petitioner intentionally engaged in dilatory tactics. Id. at 278 . 16 III. DISCUSSION 17 Petitioner argues that he has demonstrated “good cause” for his failure to exhaust his 18 claims in the state court, that his claims are potentially meritorious, and that he has not engaged in 19 dilatory tactics. Docket No. 27 at 5-9. As discussed below, the Court agrees and therefore 20 concludes that Petitioner meets each of the Rhines requirements and is entitled to a stay of this 21 action. 22 A. Good Cause 23 The Supreme Court has not precisely defined what constitutes “good cause” for a Rhines 24 stay. See Blake v. Baker, 745 F.3d 977, 980-81 (9th Cir. 2014). The Ninth Circuit Court of 25 Appeals has found that good cause does not require “extraordinary circumstances.” Jackson v. 26 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). Rather, “good cause turns on whether the petitioner 27 can set forth a reasonable excuse, supported by sufficient evidence, to justify” the failure to 1 component of the Rhines test.” Id. 2 Petitioner asserts that he has demonstrated good cause for his failure to exhaust his 3 unexhausted claims in state court because several of his unexhausted claims are based upon “new 4 evidence.” For example, he asserts that Claim 104, his claim challenging excess “variability” and 5 delay in California’s capital punishment scheme, relies upon Governor Gavin Newsom’s March 6 13, 2019, Executive Order placing a moratorium on executions in California and commentary on 7 the Governor’s Executive Order by a California Supreme Court Justice. See Docket No. 27 at 6. 8 Likewise, he argues that Claim 110, his claim that California’s clemency procedure is 9 unconstitutional, relies upon a recent administrative order of the California Supreme Court 10 concerning its procedures for considering executive requests for recommendations on applications 11 for pardons and commutations and a subsequent letter from a California Supreme Court Justice to 12 Governor Newsom highlighting numerous questions left unanswered by that administrative order. — 13 — Id. In addition, Petitioner asserts good cause for failing to exhaust Claim 103, his claim alleging 14 that California unconstitutionally deprived him of a beyond a reasonable doubt jury determination 15 of every fact necessary to sentence him to death, because the claim is based upon “new law,” 16 namely, the United States Supreme Court’s decision in Hurst v. Florida, 577 U.S. __ , 136 S.Ct. 17 616 (2016), and subsequent state court opinions applying that decision. Id. 7. Finally, Petitioner 18 asserts good cause for failing to exhaust Claim 106, his claim challenging the sufficiency of 19 California’s post-conviction review process, because he could not have fairly presented and 20 exhausted such claim until he completed state post-conviction review. Id. 21 Respondent does not argue that Petitioner has failed to demonstrate good cause for his 22 failure to exhaust his claims in the state court. Rather, Respondent contends only that Petitioner 23 has not met the second Rhines requirement because none of his claims are potentially meritorious. 24 See Docket No. 34 at 3, 4-5. Upon review of the subject claims, the Court concludes that 25 Petitioner has in fact demonstrated good cause for his failure to exhaust his claims. Thus, 26 Petitioner satisfies the first prong of Rhines. 27 B. Potential Merit 1 federal habeas corpus proceedings pending exhaustion of a “plainly meritless” claim. Rhines, 544 2 U.S. at 277. As this Court has previously observed, “[t]his rule has been interpreted to mean that a 3 stay is appropriate as long as at least one claim is not plainly meritless.” Davis v. Davis, Civ. No. 4 3:13-cv-0408-EMC, 2015 WL 4512309 , at *4 (N.D. Cal. July 24, 2015) (citing Petrosky v. 5 Palmer, No. 3-10-cv-0361, 2013 WL 5278736 , at *5 (D. Nev. Sept. 16, 2013)). See also Dixon v. 6 Baker, 847 F.3d 714, 722 (9th Cir. 2017) (“A federal habeas petitioner must establish that at least 7 one of his unexhausted claims is not ‘plainly meritless’ in order to obtain a stay under Rhines.”). 8 The standard for judging whether a claim is “plainly meritless” for Rhines purposes is lenient. “In 9 determining whether a claim is ‘plainly meritless,’ principles of comity and federalism demand 10 that the federal court refrain from ruling on the merits of the claim unless ‘it is perfectly clear that 11 the petitioner has no hope of prevailing.’” Dixon, 847 F.3d at 722 (quoting Cassett v. Stewart, 406 12 F.3d 614, 624 (9th Cir. 2005)). In other words, a federal court may forego a Rhines stay and 13 proceed to deny an unexhausted claim on the merits “only when it is perfectly clear that the 14 applicant does not raise even a colorable federal claim.” Cassett, 406 F.3d at 623-24 (emphasis 15 added). A claim is “colorable” when the petitioner has “alleged specific facts that, if true, would 16 entitle him to relief.” Tilcock v. Budge, 538 F.3d 1138, 1145-46 (9th Cir. 2008). 17 Respondent argues that each of Petitioner’s unexhausted claims are without merit because 18 they are foreclosed by existing precedent or are not cognizable in federal habeas corpus. Docket 19 No. 34 at 5-8. As noted above, it is not necessary that all of Petitioner’s claims surmount the 20 “plainly meritless” threshold. Instead, Petitioner “must establish [only] that at least one of his 21 unexhausted claims is not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon, 847 22 F.3d at 722. Upon close review of the relevant claims and governing case law, the Court cannot 23 conclude that it is “perfectly clear” that Petitioner has failed to allege even one colorable claim 24 among his unexhausted claims. Cassett, 406 F.3d at 623-24. By way of illustration, the Court 25 considers Claim 103 of the federal petition.1 26 Claim 103 presents Petitioner’s claim that he was unconstitutionally deprived of a beyond — 27 — 1 a reasonable doubt determination of each fact necessary to sentence him to death. Petitioner’s 2 claim is based upon the Supreme Court’s Apprendi line of jurisprudence, culminating in the recent 3 decision in Hurst. In Hurst, the Supreme Court first reiterated that the Sixth Amendment’s jury 4 trial guarantee, “in conjunction with the Due Process Clause, requires that each element of a crime 5 be proved to a jury beyond a reasonable doubt.” 136 S.Ct. at 621 (citing Alleyne v. United States, — 6 — 570 U.S. 99, 104 (2013)). The Supreme Court further explained that, pursuant to Apprendi, “any 7 fact that ‘expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty 8 verdict’ is an ‘element’ that must be submitted to a jury.” Id. (quoting Apprendi v. New Jersey, — 9 — 530 U.S. 466, 494 (2000)). Then, reiterating its holding in Ring v. Arizona, 536 U.S. 584 (2002), 10 the Court explained that, where a jury’s guilty verdict alone does not permit the imposition of a 11 death sentence, any additional findings of fact necessary to impose such sentence—such as the 12 finding of “aggravating circumstances”—must be found by the jury rather than a judge. Id. 13 Applying these precedents, the Supreme Court in Hurst held that Florida’s capital sentencing 14 scheme violated Hurst’s Sixth Amendment right to a jury determination of all facts necessary to 15 sentence Hurst to death because it “required the judge alone to find the existence of an aggravating 16 circumstance[.]” Id. at 624 . In reaching this conclusion, the Court noted the “central and singular 17 role the judge plays under Florida law[,]” pursuant to which the judge made the essential findings 18 necessary to impose death, including “‘the facts . . . [t]hat sufficient aggravating circumstances 19 exist’ and ‘[t]hat there are insufficient mitigating circumstances to outweigh the mitigating 20 circumstances.” Id. at 622 (quoting Fla. Stat. § 921.141 (3)). Petitioner alleges that Hurst 21 establishes that, “where the weighing of facts in aggravation and mitigation is a prerequisite to 22 imposing a death sentence, the Sixth Amendment requires the state to prove to a jury, beyond a 23 reasonable doubt, both that the aggravating circumstances exist and that they outweigh the 24 mitigating circumstances.” Docket No. 26 at 541, ¶ 9. Petitioner further alleges that “[i]n 25 violation of Hurst, California permits a jury to impose a death sentence without finding . . . every 26 pre-requisite to a death sentence—that aggravating factors exist; that they outweigh the mitigating 27 factors; and that death is the appropriate punishment—beyond a reasonable doubt.” Docket No. 1 Respondent argues that Claim 103 is “plainly meritless” because the California Supreme 2 Court has repeatedly upheld California’s capital sentencing procedure after Hurst and because, he 3 asserts, Hurst may not be applied retroactively to cases on collateral review. Docket No. 34 at 54 6. Although the California Supreme Court has indeed concluded that Hurst does not invalidate 5 California’s capital sentencing scheme, see, e.g., People v. Rangel, 62 Cal. 4th 1192 , 1235 n.16 6 (2016), the mere fact that California appellate courts have so far declined to invalidate California’s 7 capital sentencing scheme after Hurst does not render a claim that the sentencing scheme is 8 unconstitutional “plainly meritless.” Although Rangel is cited in virtually every subsequent 9 California Supreme Court decision upholding California’s scheme against Hurst challenges,2 the 10 California Supreme Court’s discussion of Hurst in Rangel is, in relevant part, cursory. In 11 addressing a string of challenges to California’s capital sentencing scheme, the California 12 Supreme Court in Rangel held: 13 The death penalty statute does not lack safeguards to avoid arbitrary and capricious sentencing, deprive defendant of the right to a jury 14 trial, or constitute cruel and unusual punishment on the ground that it does not require either unanimity as to the truth of aggravating 15 circumstances or findings beyond a reasonable doubt that an aggravating circumstance (other than Penal Code section 190.3, 16 factor (b) or (c) evidence) has been proved, that the aggravating factors outweighed the mitigating factors, or that death is the 17 appropriate sentence. — 18 — 62 Cal. 4th at 1235 (citations omitted). The California Supreme Court simply remarked that 19 “[n]othing” in Hurst, Ring, or Apprendi “affects our conclusions in this regard.” Id. Inasmuch as 20 the California Supreme Court offers any reasoning for this conclusion, it distinguishes California’s 21 sentencing scheme from Florida’s due to California’s requirement that a “jury weighs the 22 aggravating and mitigating circumstances and reaches a unanimous penalty verdict that ‘impose[s] 23 a sentence of death’ or life imprisonment without possibility of parole.” Id. n.16 (quoting Cal. 24 Pen. Code §§ 190.3, 190.4). In other words, the California Supreme Court concluded that Hurst 25 does not invalidate California’s capital sentencing scheme because, unlike the Florida scheme at — 26 — 2 See, e.g., People v. Beck, 8 Cal. 5th 548 , -- P.3d --, 2019 WL 6461837 , at *76 (Cal. Dec. 2, — 27 — 2019); People v. Johnson, 8 Cal. 5th 475 , 453 P.3d 38, 76 (Cal. 2019); People v. Capers, 7 Cal. 1 issue in Hurst, a California jury’s sentencing verdict “is not merely ‘advisory.’” Id. (quoting 2 Hurst, 136 S.Ct. at 622). Rangel makes clear, however, that California’s capital sentencing statute 3 does not require proof beyond a reasonable doubt that aggravating circumstances exist or that such 4 aggravating circumstances outweigh mitigating circumstances. 62 Cal. 4th at 1235 .3 5 While the California Supreme Court is correct in its assessment that, unlike in California, 6 the Florida scheme at issue in Hurst resulted in an advisory jury sentencing verdict, Rangel does 7 not address the relevant arguments raised by Petitioner herein. Rangel does not explain its 8 conclusion that Hurst does not require “findings beyond a reasonable doubt that an aggravating 9 circumstance . . . has been proved” or “that the aggravating factors outweighed the mitigating 10 factors[.]” 62 Cal.4th at 1235 . 11 At least one sister state court in Delaware has concluded that Hurst does require that a 12 jury’s findings regarding the existence of aggravating circumstances and whether such 13 circumstances outweigh mitigating circumstances must be based on proof beyond a reasonable 14 doubt. See Rauf v. State, 145 A.3d 430, 434 (Del. 2016). It is thus at least debatable that Hurst 15 indeed requires that such findings be made beyond a reasonable doubt. Neither the U.S. Supreme 16 Court nor the Ninth Circuit has addressed and foreclosed a challenge to California’s scheme under 17 Hurst. Claim 103 is at least “colorable.” 18 Respondent nonetheless argues that Claim 103 is also “plainly meritless” because “the 19 Ninth Circuit has held that Hurst does not apply retroactively to cases, like [Petitioner’s,] on 20 collateral review.” Docket No. 34 at 5 (citing Ybarra v. Filson, 869 F.3d 1016, 1031-33 (9th Cir. 21 2017)). As discussed in Ybarra, a “new rule of constitutional law does not usually apply 22 retroactively” unless “it is a substantive rule which ‘places certain kinds of primary, private 23 individual conduct beyond the power of the criminal law-making authority to proscribe” or “if it is — 24 — 3 The California Supreme Court has previously held that, of the statutorily enumerated aggravating — 25 — and mitigating circumstances in Cal. Penal Code § 190.3 , aggravating evidence may pertain to only four of the factors: 190.3(a) (the circumstances of the offense); 190.3(b) (other violent — 26 — criminal conduct by the defendant); 190.3(c) (prior felony convictions); and 190.3(i) (the defendant’s age). See, e.g., People v. Coffman, 34 Cal. 4th 1, 108-09 (2004). As recognized in — 27 — Rangel, only factors (b) and (c) must be supported by proof beyond a reasonable doubt. 62 Cal. 1 a ‘watershed rule[] of criminal procedure.” 869 F.3d at 1032 (quoting Teague v. Lane, 489 U.S. 2 288, 310-311 (1989)). In Ybarra, the Ninth Circuit recognized that, in Schriro v. Summerlin, 542 3 U.S. 348 , 355-56 (2004), the Supreme Court held that Ring does not apply retroactively because it 4 does not announce a “watershed rule with regard to its holding that a jury, as opposed to a judge, 5 must make the findings that render a defendant eligible for the death penalty.” Id. at 1033 . 6 Reasoning that the “hypothetical rule established in Hurst involves only a sentencing 7 determination,” as in Apprendi and Ring, the Ninth Circuit determined that Hurst likewise does 8 not apply retroactively because “neither Ring nor Apprendi apply retroactively[.]” Id. 9 Petitioner argues that Schriro does not bar retroactive application of Hurst in his case 10 because he “is not arguing for retroactive application of the holding that the jury, as opposed to a 11 judge, is responsible for making findings of fact. Instead, he [. . .] argu[es] that the holding of 12 Apprendi, Ring, and Hurst [which] require[es] the jury to make the weighing determination 13 unanimously and beyond a reasonable doubt is retroactive.” Docket No. 35 at 6-7 (emphasis in 14 original). 15 To be sure, the Ninth Circuit in Ybarra appears to have addressed this argument, noting 16 that, “[e]ven if Hurst establishes that the weighing determination must be made beyond a 17 reasonable doubt, this rule is nothing more than an extension of Apprendi” and that “Apprendi is 18 not a watershed rule with regard to its holding that any fact . . . increase[ing] the penalty for a 19 crime . . . must be . . . proved beyond a reasonable doubt.” 869 F.3d at 1033 (citing United States 20 v. Sanchez-Cervantes, 282 F.3d 664, 668 (9th Cir. 2002) (internal quotations omitted). 21 Ybarra notwithstanding, for the limited purpose of deciding whether to grant a Rhines stay, 22 Petitioner’s argument of retroactivity is not without support. As argued by Petitioner, the earlier 23 Ninth Circuit precedent relied upon in Ybarra, Sanchez-Cervantes, has been called into question 24 by at least one court in the Ninth Circuit. See United States v. Siegelbaum, 359 F.Supp.2d 1104 , 25 1108 (D. Ore. 2005) (Sanchez-Cervantes “relied upon a narrow interpretation of Apprendi” that 26 was “repudiated” by the Supreme Court in its decisions in Blakely v. Washington, 542 U.S. 296 27 (2004), and United States v. Booker, 543 U.S. 220 (2005)). Moreover, in invalidating Delaware’s 1 principles modeled on Teague, held that the burden of proof rule espoused in Hurst and applied in 2 Rauf must be applied retroactively because it addresses a “Due Process Clause violation caused by 3 the unconstitutional use of a lower burden of proof” rather than a violation of the Sixth 4 Amendment right to a jury trial, as in Ring and Schriro. See Powell v. Delaware, 153 A.3d 69 , 735 74 (Del. 2016). Likewise, a federal district court in Florida has opined that the question whether 6 the burden of proof component of Hurst may be applied retroactively is sufficiently debatable that 7 a Rhines stay was warranted in that case. See Guardado v. Jones, No. 4:15-cv-256-RH, 2016 WL 8 3039840, *2 (N. D. Fla. May 27, 2016) (distinguishing Schriro’s Ring non-retroactivity holding 9 because it “did not address the requirement for proof beyond a reasonable doubt[,]” as relevant in 10 Hurst, and granting a stay and abeyance so that the habeas petitioner could exhaust a claim based 11 on Hurst in the state court). Similarly, a federal district court in Ohio granted a certificate of 12 appealability on the question of the retroactivity of the burden of proof rule of Hurst. See Raglin 13 v. Mitchell, Case No. 1:00-cv-767, 2016 WL 7029709 , at *1-*2 (S.D. Ohio Dec. 2, 2016), report 14 and recommendation adopted, 2017 WL 25523 . 15 Thus, Petitioner’s argument about Hurst’s retroactivity is not frivolous. This is especially 16 so since the cited decisions rely upon a common, well-established legal foundation: prior to 17 Teague, the Supreme Court held that a rule establishing that the Due Process Clause requires proof 18 beyond a reasonable doubt in criminal proceedings must be applied retroactively. In In re 19 Winship, 397 U.S. 358, 364 (1970), the Supreme Court held that “the Due Process clause protects 20 the accused against conviction except upon proof beyond a reasonable doubt of every fact 21 necessary to constitute the crime with which he is charged.” Applying this rule, the Court 22 determined that a state juvenile delinquency proceeding employing only a preponderance of the 23 evidence standard did not accord the accused minor due process. Id. at 365-68 . Subsequently, in 24 Ivan V. v. City of New York, 407 U.S. 203, 204 (1972), the Supreme Court held that the rule of In 25 re Winship must be applied retroactively because “the major purpose” of In re Winship’s 26 requirement of proof beyond a reasonable doubt in criminal proceedings “was to overcome an 27 aspect of a criminal trial that substantially impairs the truth-finding function[.]” The Supreme 1 another pre-Teague case. In Hankerson, the Court held that the North Carolina Supreme Court 2 erred in failing to retroactively apply Mullaney v. Wilbur, 421 U.S. 684 (1975). In Mullaney, the 3 Supreme Court applied In re Winship to invalidate a state law that required “a defendant to 4 establish by a preponderance of the evidence that he acted in the heat of passion on sudden 5 provocation in order to reduce murder to manslaughter.” 421 U.S. at 703-04 . Apart from the state 6 law’s effective shifting of the burden of proof from the State to the defendant, the Court found that 7 utilizing this lower burden of proof permitted the “intolerable result” of a defendant receiving “a 8 life sentence when the evidence indicates that it is as likely as not that he deserves a significantly 9 lesser sentence.” Id. Although the defendant in Hankerson was convicted prior to the decision in 10 Mullaney, the Supreme Court ruled that the state appellate court erred in failing give Mullaney 11 retroactive effect because the rule in Mullaney “was designed to diminish the probability that an 12 innocent person would be convicted and thus to overcome an aspect of a criminal trial that 13 ‘substantially impairs the truth-finding function.’” 432 U.S. at 242 (quoting Ivan V., 407 U.S. at 14 204-05). Ivan V. and Hankerson thus demonstrate the potential viability of the premise that, to the 15 extent Hurst announced a new due process rule requiring that the existence of aggravating 16 circumstances and the weighing determination be proved beyond a reasonable doubt, that rule 17 affects the reliability of “truth-finding” at trial must be applied retroactively. 18 Accordingly, Claim 103 is not “plainly meritless,” and Petitioner has therefore satisfied the 19 second prong of Rhines. 20 C. Dilatory Litigation Tactics 21 Under the third prong of the Rhines test, “it likely would be an abuse of discretion for a 22 district court to deny a stay and to dismiss a mixed petition if . . . there is no indication that the 23 petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278 . 24 Respondent does not argue that Petitioner has engaged in dilatory litigation tactics that preclude a 25 grant of a stay under Rhines. In the absence of any concerted argument by Respondent, the Court 26 discerns no basis to conclude that Petitioner has engaged in “dilatory litigation tactics.” Indeed, 27 until he filed his state exhaustion petition prior to filing his federal petition, Petitioner had been 1 petition. That Petitioner filed his state exhaustion petition prior to when the Court’s Local Rules 2 required him to do so, and that he did so out of an abundance of caution considering California’s 3 || timeliness rules (see Docket No. 28 at 2-3), only buttresses the Court’s conclusion that Petitioner 4 || has not engaged in “dilatory litigation tactics.” Accordingly, Petitioner has satisfied the third 5 || prong of the Rhines test. 6 Petitioner thus satisfies all three prongs of Rhines. 7 IV. CONCLUSION 8 For the foregoing reasons, Petitioner’s motion for stay and abeyance (Docket No. 27) is 9 || GRANTED and this matter is STAYED. Thirty days after the entry of this order, and every 90 10 || days thereafter until proceedings in his state exhaustion case are completed, Petitioner shall serve 11 and file in this Court a brief report updating the Court and the parties on the status of his pending 12 state habeas action. No later than 30 days after proceedings in his state case are completed, 5 13 Petitioner shall serve and file notice that proceedings are completed. 14 This order disposes of Docket No. 27. a 16 IT IS SO ORDERED. 18 Dated: January 16, 2020 — 19 — — / ED M. CHEN 21 United States District Judge — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —