Dixon v. Baker, No. 14-16644 [February 2, 2017]

Dixon v. Baker

Dixon raised Federal claims of ineffective assistance of counsel for failure to raise a voluntary intoxication defense and for failure to object to a prejudicial photograph of Dixon presented during the state’s opening statement at trial. The district court dismissed his petition after finding that he had not shown “good cause” for his failure to exhaust his claims in state court. Dixon claimed that because he did not have counsel on his state petition he had shown good cause. “Because Dixon’s petition was only partially unexhausted, Dixon should have been allowed to delete the unexhausted cliams and proceed on the exhausted claims if his motion to stay and abey the case were denied.” In this case the Court decided that it was no necessary to remand to proceed on the exhausted claims because the district court should have granted his requested stay. Because Dixon established good cause and his claims were not plainly meritless the stay should have been granted. “Based on the plain language of Blake [v. Baker, 745 F.3d 977] – that good cause under Rhines “cannot be any more demanding than a showing of cause under Martinez to excuse state procedural default . . . – the statement that ‘there was no counsel’ in Dixon’s state post-conviction case is sufficient to establish good cause.” A petitioner must also establish at least one of his unexhaust claims is not ‘plainly meritless’ in order to obtain a stay. [Along with the absence of abusive tactics, which the state did not dispute here] The claim was ground on the evidence that during opening statement the state showed to the jury a booking photo of Dixon with the word “GUILTY” written across it, no objection was made by trial counsel. This practice undermines the presumption of innocence and, therefore, the right to a fair trial and to established that it was not plainly meritless. [Although, at a hearing he would a higher standard as he would also have to show prejudice.] The Court remanded with instructions to grant Dixon’s motion for a stay and abeyance with reasonable time limits while he pursues his unexhausted claims in state court.