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-
R. KIRKLAND, Warden, RSWL(RZ)
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.
11655
11658 WOOTEN v. KIRKLAND
COUNSEL
Jeffrey D. Price, Santa Monica, California, for the petitioner-
appellant.
WOOTEN v. KIRKLAND 11659
Carl N. Henry, Deputy Attorney General for the State of Cali-
fornia, Los Angeles, California, for the respondent-appellee.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Petitioner-Appellant, James Wooten, was convicted of mur-
der in the first degree in California state court. After unsuc-
cessful 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 peti-
tion 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 dis-
close 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
1
Cumulative error occurs when “ ‘although no single trial error exam-
ined in isolation is sufficiently prejudicial to warrant reversal, the cumula-
tive 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)).
11660 WOOTEN v. KIRKLAND
of Appeal denied Wooten’s cumulative error claim, affirmed
Wooten’s conviction and sentence, and modified the judg-
ment 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 sup-
port 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 peti-
tion 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 cumu-
lative error claim before the California Supreme Court. Woo-
ten, 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) proceed-
ing 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
WOOTEN v. KIRKLAND 11661
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 abey-
ance 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 recommenda-
tion suggesting that the district court dismiss the habeas peti-
tion 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 pro-
ceed 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 juris-
diction 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 discre-
11662 WOOTEN v. KIRKLAND
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 appli-
cant 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 dis-
trict court is permitted to stay a mixed petition—a petition
containing both exhausted and unexhausted claims—in “lim-
ited circumstances,” so that a petitioner may present his unex-
hausted 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 deter-
mines 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 poten-
tially meritorious; and (3) there is no indication that the peti-
tioner intentionally engaged in dilatory litigation tactics. Id. at
278.
WOOTEN v. KIRKLAND 11663
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 mind-
ful 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 Califor-
nia 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).
11664 WOOTEN v. KIRKLAND
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 rep-
resented 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 dis-
trict courts should only stay mixed petitions in “limited cir-
cumstances.” Id. at 277.
[5] Additionally, were we to endorse such a broad interpre-
tation 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 “lim-
ited 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, how-
ever, delay the execution of sentences and reduce a petition-
er’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 dis-
cretion by concluding that Wooten did not have “good cause”
for his failure to exhaust his cumulative error claim.3
3
Wooten also argues that the district court erred by not advising him of
the stay-and-abey procedure endorsed in Calderon v. United States Dis-
trict 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.
WOOTEN v. KIRKLAND 11665
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 cumu-
lative 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 presen-
tation requires that a state’s highest court has ‘a fair opportu-
nity 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. Bal-
dwin, 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
4
Wooten 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 cita-
tion 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.
11666 WOOTEN v. KIRKLAND
the California Supreme Court. Thus, under Baldwin, Woo-
ten’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 peti-
tion 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 pre-
sent 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 rever-
sal. 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 peti-
tioner. 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 substan-
tive 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 substan-
tive errors in his brief to the California Supreme Court with-
out 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.
WOOTEN v. KIRKLAND 11667
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 explic-
itly mentioned his cumulative error claim in the conclusion of
his brief to the California Supreme Court. Id. at 930. We nev-
ertheless 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 Woo-
ten’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
11668 WOOTEN v. KIRKLAND
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 abey-
ance 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.