Terry Dixon v. Renee Baker
2017 U.S. App. LEXIS 1825
| 9th Cir. | 2017Background
- Terry Dixon was convicted of four counts of attempted murder (2009) after a 2007 shootout while he was intoxicated and sentenced to life without parole; convictions affirmed by the Nevada Supreme Court (2011).
- Dixon filed a pro se state post-conviction petition (Feb 2012) alleging trial counsel ineffective on several grounds; Nevada Supreme Court denied relief (Apr–May 2013).
- Dixon filed a federal habeas petition (May 2013) raising many claims exhausted in state court and later sought to amend to add unexhausted claims (voluntary intoxication defense; failure to object to a prejudicial booking photograph used in opening).
- The district court granted amendment but dismissed the petition for failure to exhaust and denied Dixon’s motion to stay under Rhines, stating Dixon had not shown good cause for failing to exhaust; the order suggested Dixon could file a new habeas petition after state exhaustion.
- AEDPA’s one-year statute of limitations had run, so a dismissal (rather than a stay) risked time-barring Dixon’s claims; Dixon appealed and counsel was appointed for the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court properly dismissed mixed petition for failure to exhaust | Dixon argued petition was mixed (some claims exhausted) and dismissal deprived him of relief; sought stay under Rhines | State argued dismissal proper and stay unwarranted | Court: Dismissal wrong; because petition was partially exhausted, district court should have allowed deletion or—preferably—granted a stay; reversed and remanded for stay |
| Whether Rhines stay should have been granted (good-cause requirement) | Dixon argued lack of counsel in state post-conviction proceedings establishes good cause under Martinez/Blake | State argued Dixon failed to show sufficient evidence of cause and lacked proof used in Blake | Court: Lack of any state post-conviction counsel satisfies good cause under Martinez and Blake; district court abused discretion in denying stay |
| Whether Dixon’s unexhausted claims were plainly meritless (Rhines second factor) | Dixon pointed to Watters (Nevada) recognizing that projecting a defendant’s booking photo with "GUILTY" undermines presumption of innocence—thus the failure to object could be meritorious | State argued claims lacked plausible merit | Court: At least one unexhausted claim (failure to object to prejudicial photo) not plainly meritless; Rhines stay required |
| Whether Dixon engaged in dilatory or abusive litigation tactics (Rhines third factor) | Dixon had sought counsel and amended timely; no dilatory conduct alleged | State contended procedural posture warranted denial | Court: State conceded no abusive tactics; factor favors stay |
Key Cases Cited
- Rhines v. Weber, 544 U.S. 269 (2005) (stay-and-abeyance available to avoid AEDPA timeliness bar for mixed petitions when good cause, non-frivolous claims, and no abusive tactics)
- Rose v. Lundy, 455 U.S. 509 (1982) (total-exhaustion rule requiring dismissal of mixed petitions)
- Martinez v. Ryan, 566 U.S. 1 (2012) (lack or ineffective state post-conviction counsel can excuse procedural default of ineffective-assistance-of-trial-counsel claims)
- Blake v. Baker, 745 F.3d 977 (9th Cir. 2014) (good cause under Rhines can be shown by ineffective-assistance-of-post-conviction-counsel allegations; standard tied to Martinez)
- Watters v. State, 313 P.3d 243 (Nev. 2013) (use of a booking photo labeled "GUILTY" undermines presumption of innocence)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)