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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MICHAEL COX, NO. CIV.S-04-0065 MCE DAD DP

Petitioner, AMENDED ORDER RE

PETITIONER’S MOTION FOR 

v. STAY AND ABEYANCE 

STEVEN ORNOSKI, Warden of

the California State Prison

at San Quentin, DEATH PENALTY CASE

Respondent.

__________________________/

On January 30, 2006, this action came before the

undersigned for hearing on petitioner’s motion for an order holding

these proceedings in abeyance pending exhaustion of claims before the

California Supreme Court. Assistant Federal Defenders Timothy J.

Foley and Lissa J. Gardner, appeared for petitioner. Deputy Attorney

General R. Todd Marshall, appeared for respondent.

On June 28, 2005, petitioner filed a mixed habeas petition

with this court setting forth fifty-three claims for relief. 

Immediately thereafter, on June 30, 2005, counsel on behalf of

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petitioner filed a petition with the California Supreme Court seeking

relief with respect to twenty claims, all of which are included in

the federal petition before this court. See In re Cox, Case No.

S135128. Petitioner now seeks a stay and order holding all

proceedings in this case in abeyance pending resolution of the

exhaustion petition by the California Supreme Court. 

Petitioner argues that he is entitled to the requested stay

pursuant to the decision in Rhines v. Weber, 544 U.S. 269 (2005). He

asserts that a stay should be granted because: (1) good cause exists

with respect to his filing of the state exhaustion petition; (2) his

unexhausted claims are potentially meritorious; and (3) he has

proceeded with due diligence in light of the complexity of the record

and issues involved and his allegations of newly discovered evidence

suppressed by the prosecution below. Respondent opposes the motion

arguing that: (1) petitioner has failed to establish good cause for

his delayed filing of the state exhaustion petition; and (2) the new

unexhausted claims presented by petitioner are plainly meritless. 

Petitioner’s arguments are persuasive.

The Supreme Court has affirmed the district court’s

discretion to stay a federal habeas proceeding to allow a petitioner

to present unexhausted claims to the state court where there is good

cause for the petitioner’s failure to exhaust all claims in state

court before filing a federal habeas petition. Rhines v. Weber, 544

U.S. 269, 277 (2005). See Anthony v. Cambra, 236 F.3d 568, 575 (9th

Cir. 2000) (authorizing district courts to stay fully exhausted

federal petitions pending exhaustion of other claims); Calderon v.

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United States Dist. Court (Taylor), 134 F.3d 981, 987-88 (9th Cir.

1998). This discretion to issue a stay extends to mixed petitions.

Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) (“Rhines concluded

that a district court has discretion to stay a mixed petition to

allow a petitioner time to return to state court to present

unexhausted claims.”). The Supreme Court has stated that “stay and

abeyance should be available only in limited circumstances” and that

a stay “is only appropriate when the district court determines there

is good cause for the petitioner’s failure to exhaust his claims

first in state court.” Rhines, 544 U.S. at 277. Even if a

petitioner shows good cause, the district court should not grant a

stay if the unexhausted claims are plainly meritless. Id. Finally,

federal proceedings may not be stayed indefinitely, and reasonable

time limits must be imposed on a petitioner’s return to state court

to exhaust additional claims. Id. at 277-78. However, the Supreme

Court also observed that where these criteria are met, it likely

would be an abuse of discretion to deny a stay. Id. at 278. 

Counsel was first appointed to represent petitioner in this

federal habeas action on March 23, 2004. At that time the court

appointed the Office of the Federal Defender, Capital Habeas Unit, as

lead counsel and an outside associate counsel who was to share

substantial responsibility in this matter. On June 22, 2004, it was

learned for the first time by the Office of the Federal Defender that

the appointed associate counsel had been placed on probation and

suspended from the practice of law for sixty days by the California

Supreme Court. On July 8, 2004, this court signed an order relieving

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associate counsel and naming the Federal Defender’s Office as the

sole counsel in this matter. On July 29, 2004, the Federal

Defender’s Office received the relieved counsel’s file and learned

that, despite the representations to the contrary, no transferrable

work product existed. The state court post-conviction record alone

is over 17,000 pages long. 

Counsel for petitioner represent to the court that their

investigation and preparation following their appointment yielded

discovery for the first time of documentary evidence material to the

underlying prosecution of petitioner that was never disclosed to

petitioner’s trial counsel. This newly discovered evidence included

a police report documenting a prior false rape allegation by the

crucial prosecution witness in petitioner’s case as well as

impeachment evidence with respect to two other important prosecution

witnesses. This newly discovered, and long-suppressed according to

petitioner’s counsel, evidence underlies the first three unexhausted

claims now being presented to the California Supreme Court. In turn,

the presentation of these new claims alleging violation of Brady v.

Maryland, 373 U.S. 83 (1963) required the re-submission of the other

claims to the California Supreme Court so that the state court could

consider them within the added context of the new suppression of

evidence claims.

Certainly the suppression of material evidence at trial and

thereafter, as well as difficulties associated with the obtaining of

counsel in capital cases are external circumstances far outside

petitioner’s control. If true, the allegations would establish good

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cause for failing to present these claims first to the state courts

once they were discovered. See Pace v. DiGuglielmo, 544 U.S. 408,

416 (2005) (authorizing protective habeas filings in federal court as

falling within the “good cause” standard). 

Similarly, petitioner’s new unexhausted claims are based

upon serious allegations of the suppression of material evidence by

the prosecution at trial. It cannot be said that such claims are

plainly meritless on their face. Most of respondent’s arguments in

this regard are devoted to the assertion that petitioner’s

unexhausted claims are procedurally defaulted as successive and

untimely under state law. However, under principles of comity, those

are issues to first be addressed by the state court. Moreover, under

state law the California Supreme Court is free to entertain the

exhaustion petition. 

Finally, no serious argument is raised that petitioner or

his counsel are engaging in dilatory tactics seeking to delay this

federal action by filing the state exhaustion petition. Moreover,

the record would belie such an argument. Counsel filed the state

exhaustion petition with the California Supreme Court immediately

after the mixed petition was filed in this court. Pursuant to the

California Supreme Court’s order, respondent filed a lengthy Informal

Response on December 14, 2005. By March 3, 2006, petitioner counsel

had lodged their 124-page Reply with that court. Since that time the

parties have been awaiting action from the California Supreme Court. 

If petitioner obtains relief in state court, his federal petition may

be rendered moot, thereby serving the interest of judicial economy as

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well as the interests of justice. If relief is denied, counsel for

petitioner has assured the court they are prepared to resume the

federal litigation. There is no reason to doubt those assurances.

For the reasons set forth above, the court concludes that

petitioner’s interest in obtaining federal review of his unexhausted

claims outweighs any competing interest in finality and the speedy

resolution of the pending federal petition. See Rhines, 544 U.S. at

278. 

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner’s motion for a stay and abeyance is granted;

2. This action is stayed;

3. The Clerk of the Court is directed to administratively

close this case;

4. Petitioner shall file a status report on the first

court day of every second month commencing with November 1, 2006,

concerning the status of his habeas proceedings before the 

California Supreme Court; and

5. Petitioner shall file a motion to lift the stay, within

ten days after receiving a decision on his habeas petition before the

California Supreme Court; the status reports and, motion to lift the

stay shall reflect the case file number assigned to this case. 

DATED: October 3, 2006.

DAD:lg

ddad1/orders.capital/cox.0065.sty.amended

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