Sanford

Background

Barry John Sanford, identified as a California state prisoner, initially filed a letter that the court construed as an attempt to seek federal review of his state custody under 28 U.S.C. § 2254. The court later determined that the filing included a federal petition. Sanford paid the filing fee and submitted a further letter explaining his efforts to challenge his state conviction.

According to the petition, a jury in Humboldt County Superior Court found Sanford guilty of several counts involving acts against a child, and the court sentenced him to 27 years in state prison on February 23, 2017. Sanford stated that he unsuccessfully appealed to the state appellate and high courts.

Exhaustion problem

Federal law generally requires a state prisoner to present each federal habeas claim to the highest available state court and give that court a fair opportunity to decide the claim before seeking federal review. The court stated that the claims Sanford said he had presented in state court were: (1) that the trial court failed to obtain an adequate waiver of counsel, and (2) that the trial court improperly allowed self-representation.

The federal petition instead listed four grounds: alleged judicial structural errors involving advisory counsel; prosecutorial misconduct for coaching the complaining witness; ineffective assistance of advisory counsel; and ineffective assistance of appellate counsel. Sanford indicated that he was still researching at least some of these claims. The court therefore found that the four claims in the petition appeared unexhausted and were not ready for federal review.

The court also liberally construed the petition to include the two claims Sanford had presented in state court. That made the petition a mixed petition—one containing both exhausted and unexhausted claims—which generally must be dismissed unless the petitioner removes the unexhausted claims or obtains a stay under applicable procedures. The court expressly made no finding about whether any of the claims were legally cognizable.

Stay options

The court explained that Sanford could seek a stay under either the procedure discussed in Rhines v. Webber or the procedure discussed in Kelly v. Small so that he could return to state court and pursue exhaustion of additional claims. A stay under the Rhines procedure would require a showing of good cause for failing to exhaust and that the claims were potentially meritorious. The court also described the Kelly procedure, which requires deleting unexhausted claims, staying the exhausted petition while the petitioner returns to state court, and later seeking to add newly exhausted claims that meet applicable relation-back and timeliness requirements.

Disposition

The court ordered that the petition was DISMISSED with leave to amend. Within 28 days, Sanford could notify the court that he wished to strike the unexhausted claims and proceed only on the two claims identified as having been presented to the state courts. Alternatively, he could file a motion for a stay under Rhines or Kelly, along with an amended petition containing only exhausted claims. The court stated that failure to respond as ordered would result in dismissal without prejudice of the mixed petition.