United States v. 2020-07-21 | 18-55724 | MARVIN CAGE V. WARREN MONTGOMERY | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN DESHAWN CAGE,

Petitioner-Appellant,

v.

WARREN L. MONTGOMERY, Warden,

Respondent-Appellee.

No. 18-55724

D.C. No.
5:17-cv-01524-PA-AS

MEMORANDUM
*

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding

Argued and Submitted July 10, 2020
Pasadena, California

Before: PAEZ and BADE, Circuit Judges, and GORDON,
**
District Judge.

Marvin Cage appeals the judgment of the district court dismissing his federal
habeas petition following the court’s denial of a stay under Rhines v. Weber, 544
U.S. 269 (2005). We have jurisdiction under 28 U.S.C. § 1291. We review for an
abuse of discretion, Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014), and we

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The Honorable Andrew P. Gordon, United States District Judge for
the District of Nevada, sitting by designation.
FILED

JUL 21 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
vacate and remand.
1. Under Rhines, “a federal district court has discretion to stay [a] mixed
petition to allow the petitioner to present his unexhausted claims to the state court
in the first instance, and then to return to federal court for review of his perfected
petition.” 544 U.S. at 271-72. It is “an abuse of discretion for a district court to
deny a stay and to dismiss a mixed petition if the petitioner had good cause for his
failure to exhaust, his unexhausted claims are potentially meritorious, and there is
no indication that the petitioner engaged in intentionally dilatory litigation tactics.”
Id. at 278.
Here, the district court abused its discretion by concluding that Cage failed
to establish good cause for a stay. Under our case law, a federal habeas petitioner
need only “set forth a reasonable excuse, supported by sufficient evidence, to
justify [the] failure” to exhaust. Blake, 745 F.3d at 982. As relevant here, the good
cause standard is satisfied when a petitioner lacked the effective assistance of
counsel during state postconviction review proceedings. See Dixon v. Baker, 847
F.3d 714, 720-22 (9th Cir. 2017); Blake, 745 F.3d at 982-84. As in Dixon, Cage
was without counsel during postconviction proceedings. Although Cage did not
file a state postconviction review petition—in contrast to the petitioner in Dixon—
this distinction is immaterial. As we explained in Dixon, “[a] petitioner who is
without counsel in state postconviction proceedings cannot be expected to

3
understand the technical requirements of exhaustion and should not be denied the
opportunity to exhaust a potentially meritorious claim simply because he lacked
counsel.” 847 F.3d at 721. Accordingly, Cage demonstrated good cause for
failing to exhaust his unexhausted claims, including his claim of ineffective
assistance of trial counsel, during state postconviction review proceedings.
The district court did not address whether Cage has satisfied the second and
third requirements for a Rhines stay. The district court may address these
questions on remand.
2. The district court properly concluded that Cage has not established
good cause based on lack of access to his trial counsel’s legal files.
3. We reject Cage’s contention that he is entitled to a stay under
Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011).
VACATED AND REMANDED.