Delmonico v. Bonta

Background

Michael John Delmonico filed this self-represented federal petition under 28 U.S.C. § 2254, challenging a 2018 misdemeanor conviction from Palo Alto Superior Court. The petition included a Miranda claim and several ineffective-assistance-of-counsel claims. The court had previously determined that the Miranda claim and ineffective-assistance subclaim No. 1 were exhausted, but that ineffective-assistance subclaims Nos. 2 through 8 were not.

In an earlier order, the court required Delmonico to choose among proceeding only on the exhausted claims, dismissing the action and returning to state court to exhaust the other claims, or seeking a stay while he pursued exhaustion in state court. Delmonico requested a stay. He said his appellate lawyer advised him that subclaim No. 1 was sufficient and that including subclaims Nos. 2 through 8 was unnecessary and unhelpful. He said he regretted following that advice and wanted to present all of his ineffective-assistance claims.

Request for a stay

The court treated the request as one under the procedure described in Rhines v. Weber because Delmonico did not ask to remove the unexhausted claims from his petition. That procedure allows a court to pause a mixed petition while the petitioner returns to state court, but requires the petitioner to show good cause for failing to exhaust the claims, that the claims are not plainly meritless, and that the petitioner has not intentionally delayed the litigation.

The court found that the unexhausted claims were not plainly meritless and that the record did not suggest intentional delay. It nevertheless ruled that Delmonico had not shown good cause. In the court’s view, his appellate lawyer’s advice did not prevent him from presenting the claims in a state habeas petition, and he could have disregarded that advice. The court also stated that not understanding the exhaustion requirement does not establish good cause. A footnote added that the record did not show the appellate lawyer’s decision to raise only subclaim No. 1 amounted to ineffective assistance under the applicable constitutional standard.

Ruling and required election

The court denied Delmonico’s request for a Rhines stay without prejudice to seeking a King/Kelly stay. Under the King/Kelly procedure described by the court, Delmonico could amend the petition to remove the unexhausted claims, seek a stay of the remaining exhausted petition, pursue the removed claims in state court, and later seek to add them back if the amendment met the requirements concerning related facts and the federal filing deadline.

The court required Delmonico to elect one of three options: (1) dismiss subclaims Nos. 2 through 8 and proceed with subclaim No. 1 and the Miranda claim; (2) dismiss this action, return to state court to exhaust subclaims Nos. 2 through 8, and then file a new federal petition; or (3) file a second amended petition containing only exhausted claims together with a motion for a King/Kelly stay. For option (3), the court set a 28-day deadline. It stated that if Delmonico did not choose an option or file the required motion by the deadline, it would dismiss the unexhausted subclaims and issue a separate order concerning the remaining claims. The order terminated the stay request at docket entry 16.