FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES D. WOOTEN,  No. 06-56575

Petitioner-Appellant, D.C. No.

v.  CV-05-06674-

RSWL(RZ) R. KIRKLAND, Warden,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Central District of California

Ronald S.W. Lew, District Judge, Presiding

Argued and Submitted

June 3, 2008—Pasadena, California

Filed August 26, 2008

Before: William C. Canby, Jr., Jay S. Bybee, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

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COUNSEL

Jeffrey D. Price, Santa Monica, California, for the petitionerappellant. 

11658 WOOTEN v. KIRKLAND
Carl N. Henry, Deputy Attorney General for the State of California, Los Angeles, California, for the respondent-appellee.

OPINION

MILAN D. SMITH, JR., Circuit Judge: 

Petitioner-Appellant, James Wooten, was convicted of murder in the first degree in California state court. After unsuccessful direct appeals, Wooten petitioned for a writ of habeas

corpus under 28 U.S.C. § 2254 in the United States District

Court for the Central District of California. The district court

dismissed Wooten’s petition because of his failure to exhaust

all issues that were the subject of the petition. Wooten appeals

the district court’s dismissal claiming, among other things,

that he was entitled to a stay of his petition under Rhines v.

Weber, 544 U.S. 269 (2005), because he had “good cause” for

his failure to exhaust. Specifically, Wooten argues that he was

“under the impression” that his counsel had included all the

issues raised before the California Court of Appeal in his petition to the California Supreme Court. We affirm.

FACTS AND PROCEDURAL BACKGROUND

A. Direct Appeal 

Wooten appealed his conviction for felony murder to the

California Court of Appeal. In his opening brief, Wooten,

who was represented by counsel, argued that the trial court

erred by admitting evidence of other crimes, failing to disclose evidence relating to third-party culpability, not issuing

a jury instruction on third-party culpability, and because there

was insufficient evidence to establish that a robbery occurred.

Wooten also claimed cumulative error.1 The California Court

1Cumulative error occurs when “ ‘although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors [has] still prejudice[d] a defendant.’ ”

Whelchel v. Washington, 232 F.3d 1197, 1212 (9th Cir. 2000) (quoting

United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996)). 

WOOTEN v. KIRKLAND 11659
of Appeal denied Wooten’s cumulative error claim, affirmed

Wooten’s conviction and sentence, and modified the judgment to reflect that the murder was committed during an

attempted robbery. 

Wooten then filed for review in the California Supreme

Court. In that petition, Wooten disputed the California Court

of Appeal’s finding that there was sufficient evidence to support an attempted robbery, and raised three other issues “to

exhaust state remedies for federal habeas corpus purposes.”

Wooten did not raise his cumulative error claim, but his petition requested review “[f]or all of the reasons given herein

and in the briefs to the Court of Appeal.” The California

Supreme Court denied review without explanation, and the

United States Supreme Court denied certiorari. 

B. Habeas Proceedings

Wooten filed his first amended petition for habeas corpus

on October 5, 2005. Kirkland moved to dismiss Wooten’s

petition on the basis that Wooten had not exhausted his cumulative error claim before the California Supreme Court. Wooten, who was not represented by counsel, opposed the motion,

claiming that he was “under the impression that all issues

were properly exhausted” and that his counsel on direct

appeal never advised him that any issues were not exhausted.

He argued further that cumulative error “is an issue which

governs the whole record of the Trial proceedin[g]s.” Wooten

also requested a stay or a continuance so that he could exhaust

his cumulative error claim if the court concluded that claim

was not exhausted. 

In a recommendation to the district court, the magistrate

judge stated that Wooten had many options at that juncture,

“including: (1) allowing dismissal of the Petition; (2) proceeding on the exhausted claims by filing [an amended petition]

deleting unexhausted claims and containing only the

exhausted claims . . . ; and (3) pursuing a stay of the Petition

11660 WOOTEN v. KIRKLAND
in order to return to state court to exhaust his unexhausted

claim.” The magistrate judge recommended that the district

court dismiss the petition as partially exhausted. 

Shortly thereafter, Wooten filed a motion for stay and abeyance so that the California Supreme Court could consider the

habeas petition addressing his cumulative error claim, which

Wooten filed after Kirkland filed its motion to dismiss. The

magistrate judge recommended that the district court deny

Wooten’s motion because he had not shown “good cause” for

his failure to exhaust. Wooten objected and filed a further

motion against dismissal, arguing that the cumulative error

claim was “so intertwined with every issue raised” before the

California Supreme Court that it was exhausted. The district

court denied Wooten’s motion for stay and abeyance. 

The magistrate judge filed a final report and recommendation suggesting that the district court dismiss the habeas petition as “mixed” without prejudice to Wooten filing a petition

with only the exhausted claims. The magistrate judge noted

that the court had twice informed Wooten that he could proceed with the exhausted claims by amending his petition, and

that Wooten had not filed an amended petition. Wooten again

objected to the conclusion that his cumulative error claim was

not exhausted and requested that the district court retain jurisdiction over all claims it deemed exhausted. The district court

dismissed Wooten’s habeas petition. 

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the dismissal of a habeas

petition under 28 U.S.C. § 2253(a). We review the dismissal

of a mixed habeas petition de novo. Robbins v. Carey, 481

F.3d 1143, 1146 (9th Cir. 2007). We also review whether a

petitioner failed to exhaust state court remedies de novo. Cook

v. Schriro, 516 F.3d 802, 816 (9th Cir. 2008). A district

court’s grant or denial of a stay is subject to abuse of discreWOOTEN v. KIRKLAND 11661
tion review. Jackson v. Roe, 425 F.3d 654, 656 (9th Cir.

2005).

DISCUSSION

A. The District Court Did Not Abuse Its Discretion in

Denying Wooten’s Motion to Stay His Mixed Petition. 

[1] Under 28 U.S.C. § 2254(b)(1)(A), the federal courts are

not to grant a writ of habeas corpus brought by a person in

custody pursuant to a state court judgment unless “the applicant has exhausted the remedies available in the courts of the

State.” This exhaustion requirement is “grounded in principles

of comity” as it gives states “the first opportunity to address

and correct alleged violations of state prisoner’s federal

rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). 

[2] In Rhines, however, the Supreme Court held that a district court is permitted to stay a mixed petition—a petition

containing both exhausted and unexhausted claims—in “limited circumstances,” so that a petitioner may present his unexhausted claims to the state court without losing his right to

federal habeas review due to the relevant one-year statute of

limitations. 544 U.S. at 273-75, 277-78 (explaining how the

enactment of the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), which imposed a one-year statute of

limitations on the filing of federal petitions, affected the

Court’s analysis of mixed petitions). Rhines states that “stay

and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to

exhaust his claims first in state court.” Id. at 277. Under

Rhines, a district court must stay a mixed petition only if: (1)

the petitioner has “good cause” for his failure to exhaust his

claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics. Id. at

278. 

11662 WOOTEN v. KIRKLAND
Wooten argues that he was entitled to a stay under Rhines

so that he could exhaust his cumulative error claim. We hold

that the district court did not abuse its discretion in concluding

that Wooten did not have “good cause” for failing to exhaust

his cumulative error claim. As a result, we need not reach the

other two factors in the Rhines test. 

[3] In Jackson, we stated that “good cause” for failure to

exhaust does not require “extraordinary circumstances.” 425

F.3d at 661-62. But as the Jackson court recognized, we must

interpret whether a petitioner has “good cause” for a failure

to exhaust in light of the Supreme Court’s instruction in

Rhines that the district court should only stay mixed petitions

in “limited circumstances.” Id. at 661. We also must be mindful that AEDPA aims to encourage the finality of sentences

and to encourage petitioners to exhaust their claims in state

court before filing in federal court. Rhines, 544 U.S. at 276-

77. To conclude, in this case, that Wooten had “good cause”

for his failure to exhaust would conflict with the Supreme

Court’s guidance in Rhines and disregard the goals of

AEDPA. 

[4] Wooten explains his failure to exhaust his cumulative

error claim by stating that he was “under the impression” that

his counsel included all of the issues raised before the California Court of Appeal in his petition before the California

Supreme Court.2 To accept that a petitioner’s “impression”

that a claim had been included in an appellate brief constitutes

“good cause” would render stay-and-abey orders routine.

2

In making this argument, Wooten fails to acknowledge that his counsel

on direct appeal sent him a copy of his petition for review in the California

Supreme Court, which did not mention “cumulative error.” And, although

Wooten calls his counsel “ineffective” for failing to include his cumulative

error claim in his brief to the California Supreme Court, Wooten has not

developed any ineffective assistance of counsel argument. He has not

argued that his counsel’s performance “fell below an objective standard of

reasonableness” or that “the deficient performance prejudiced him.” See

Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 

WOOTEN v. KIRKLAND 11663
Indeed, if the court was willing to stay mixed petitions based

on a petitioner’s lack of knowledge that a claim was not

exhausted, virtually every habeas petitioner, at least those represented by counsel, could argue that he thought his counsel

had raised an unexhausted claim and secure a stay. Such a

scheme would run afoul of Rhines and its instruction that district courts should only stay mixed petitions in “limited circumstances.” Id. at 277. 

[5] Additionally, were we to endorse such a broad interpretation of “good cause” that allowed for routine stays of mixed

petitions, we would also be undermining the goals of

AEDPA. In authorizing stays of habeas petitions only in “limited circumstances,” Rhines explicitly acknowledges

AEDPA’s dual purposes: to reduce delays in executing state

and federal criminal sentences and to streamline federal

habeas proceedings by increasing a petitioner’s incentive to

exhaust all claims in state court. Id. at 276-77. Stays, however, delay the execution of sentences and reduce a petitioner’s incentive to exhaust all claims in state court. See id. at

277 (“Stay and abeyance, if employed too frequently, has the

potential to undermine [AEDPA’s] twin purposes.”). 

[6] For these reasons, we hold that Wooten’s “impression”

that his counsel had exhausted an unexhausted claim does not

constitute “good cause” for failure to exhaust that claim. We,

therefore, conclude that the district court did not abuse its discretion by concluding that Wooten did not have “good cause”

for his failure to exhaust his cumulative error claim.3

3Wooten also argues that the district court erred by not advising him of

the stay-and-abey procedure endorsed in Calderon v. United States District Court (Taylor), 134 F.3d 981, 986 (9th Cir. 1998). This issue does

not fall within either of the issues this court certified for appeal. We

decline to expand the Certificate of Appealability to include this issue. 

11664 WOOTEN v. KIRKLAND
B. The District Court Properly Dismissed Wooten’s

Habeas Petition. 

[7] Wooten argues that the district court erred in dismissing

his petition without first resolving his assertion that his cumulative error claim was exhausted.4

 We disagree. Wooten did

not exhaust his cumulative error claim in the California

Supreme Court by presenting it to the California Court of

Appeal or because it was so “intertwined” with his exhausted

claims. As a result, we conclude that the district court did not

err in dismissing Wooten’s habeas petition as mixed. 

[8] The rule of exhaustion requires that a habeas petitioner

“fairly present” his federal claims to each appropriate state

court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). “Fair presentation requires that a state’s highest court has ‘a fair opportunity to consider . . . and to correct [the] asserted constitutional

defect.’ ” Lounsbury v. Thompson, 374 F.3d 785, 787 (9th

Cir. 2004) (quoting Picard v. Connor, 404 U.S. 270, 276

(1971)). A claim is not “fairly presented” if the state court

“must read beyond a petition or a brief . . . in order to find

material” that alerts it to the presence of a federal claim. Baldwin, 541 U.S. at 32 (concluding that a petitioner does not

“fairly present” an issue for exhaustion purposes when the

appellate judge can only discover the issue by reading a lower

court opinion in the case). Wooten admits that his cumulative

error claim was not set forth in his petition for review before

4Wooten did not develop any argument relating to this issue until his

reply brief. We do “not ordinarily consider matters on appeal that are not

specifically and distinctly argued in appellant’s opening brief.” Koerner v.

Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003) (internal quotations and citation omitted). We may, however, exercise our discretion and consider an

issue that was not raised in an opening brief if “the failure to raise the

issue properly did not prejudice the defense of the opposing party.” Id. at

1048-49 (citation and internal quotations omitted). Wooten’s failure to

raise the issue did not prejudice Kirkland. Kirkland had notice of the issue

as it was certified by this court and Kirkland briefed the issue. Moreover,

Kirkland has not argued waiver. 

WOOTEN v. KIRKLAND 11665
the California Supreme Court. Thus, under Baldwin, Wooten’s cumulative error claim was not “fairly presented” to the

California Supreme Court, despite the fact that he presented

it to the California Court of Appeal. 

[9] Wooten is correct that this court has concluded that a

petitioner has “fairly presented” a claim not named in a petition if it is “sufficiently related” to an exhausted claim. See

Lounsbury, 374 F.3d at 788. Claims are “sufficiently related”

or “intertwined” for exhaustion purposes when, by raising one

claim, the petition clearly implies another error. See id. This

exception does not apply when language in a petition for

review indicates a petitioner’s “strategic choice” not to present an issue for review. Id. In this case, Wooten’s cumulative

error claim was not sufficiently intertwined with his

exhausted claims, and his petition suggests a strategic choice

not to present his cumulative error claim to the California

Supreme Court. 

[10] Cumulative error comes into play when no single trial

error is, on its own, sufficiently prejudicial to warrant reversal. Whelchel, 232 F.3d at 1212. Briefing a number of isolated

errors that turn out to be insufficient to warrant reversal does

not automatically require the court to consider whether the

cumulative effect of the alleged errors prejudiced the petitioner. Cf. Lounsbury, 374 F.3d at 788 (holding that by

exhausting his procedural due process challenge in his state

court petition, the petitioner had fairly presented his substantive due process claim that he was tried while mentally

incompetent because “the clear implication of his claim was

that by following a constitutionally defective procedure, the

state court erred in finding him competent”). 

[11] Wooten recited three out of the four alleged substantive errors in his brief to the California Supreme Court without developing any argument on those errors. Indeed, Wooten

specified that he included those errors in order to exhaust

them for the purpose of bringing a federal habeas petition.

11666 WOOTEN v. KIRKLAND
That Wooten specifically noted that he was listing a number

of errors for exhaustion purposes but omitted the cumulative

error claim confirms that the California Supreme Court had

no reason to conclude that Wooten also believed that there

was cumulative error. Cf. Peterson v. Lampert, 319 F.3d

1153, 1159 (9th Cir. 2003) (en banc) (“Especially here, where

a counseled petitioner raised both the state and federal issues

in his briefing before the court of appeals, but then omitted

the federal issue before the Oregon Supreme Court, there is

reason to conclude that such omission may be a strategic

choice by counsel . . . .”).

[12] Finally, our decision in Solis v. Garcia, 219 F.3d 922

(9th Cir. 2000), suggests that a cumulative error claim must

be clearly identified in a petitioner’s brief before a state court

to be exhausted. Unlike Wooten, the petitioner in Solis explicitly mentioned his cumulative error claim in the conclusion of

his brief to the California Supreme Court. Id. at 930. We nevertheless concluded that the isolated reference to cumulative

error was not sufficient to exhaust the claim. Id. We noted

that the cumulative error was not labeled as an issue in the

brief’s table of contents and the petitioner did not argue

cumulative error or cite any authority on cumulative error,

“leaving the California Supreme Court with no argument on

the issue from either side.” Id. The same can be said of Wooten’s petition before the California Supreme Court. 

[13] Wooten’s argument that the district court deprived him

of due process by declining to hold jurisdiction over his

exhausted claims before dismissing his petition also fails.

Wooten had ample opportunity to amend his petition so that

it would include only his exhausted claims. Wooten failed to

do so and, as described above, the district court was not

required to stay Wooten’s mixed petition. If a stay is not

appropriate, the well-established rule that the district court is

not to retain jurisdiction over mixed petitions applies. Olvera

v. Giurbino, 371 F.3d 569, 572 (9th Cir. 2004) (citing Rose

v. Lundy, 455 U.S. 509, 510 (1982)). Thus, the district court

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correctly declined to consider Wooten’s exhausted claims

because they remained part of a mixed petition. See Rhines,

544 U.S. at 278 (“[I]f a petitioner presents a district court with

a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to

delete the unexhausted claims and to proceed with the

exhausted claims if dismissal of the entire petition would

unreasonably impair the petitioner’s right to obtain federal

relief.”).

CONCLUSION

For these reasons, the district court’s dismissal of Wooten’s

petition for a writ of habeas corpus is AFFIRMED. 

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