                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ALFONSO MANUEL BLAKE,                 No. 12-15522
      Petitioner-Appellant,
                                         D.C. No.
             v.                    3:09-cv-00327-RCJ-
                                          WGC
RENEE BAKER,
      Respondent-Appellee.
                                           OPINION


     Appeal from the United States District Court
               for the District of Nevada
   Robert Clive Jones, Chief District Judge, Presiding

               Argued and Submitted
     November 4, 2013—San Francisco, California

                    Filed March 14, 2014

   Before: A. Wallace Tashima, William A. Fletcher,
       and Jacqueline H. Nguyen, Circuit Judges.

                  Opinion by Judge Tashima
2                        BLAKE V. BAKER

                           SUMMARY*


                          Habeas Corpus

    The panel reversed the district court’s denial of a motion
to stay and abey a mixed 28 U.S.C. § 2254 habeas corpus
petition pending exhaustion of petitioner’s claims in state
court, and remanded.

    The district court denied a stay and abeyance on the sole
ground that petitioner did not establish good cause under
Rhines v. Weber, 544 U.S. 269 (2005), for his failure to
exhaust. The panel held that the Rhines standard for cause
based on ineffective assistance of counsel is not any more
demanding than the cause standard articulated in Martinez v.
Ryan, 132 S. Ct. 1309 (2012), and that petitioner met that
standard. The panel remanded with instructions to grant the
stay and abeyance and for further proceedings.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      BLAKE V. BAKER                         3

                         COUNSEL

Tiffani D. Hurst (argued), Assistant Federal Public Defender;
Rene L. Valladares, Federal Public Defender; Michael
Pescetta, Albert Sieber, and Randolph Fiedler, Assistant
Federal Public Defenders, Las Vegas, Nevada, for Petitioner-
Appellant.

Heather D. Procter (argued), Senior Deputy Attorney
General; Catherine Cortez Masto, Attorney General, Carson
City, Nevada, for Respondent-Appellee.


                         OPINION

TASHIMA, Circuit Judge:

    Alfonso Manuel Blake, a state prisoner, filed a habeas
corpus petition under 28 U.S.C. § 2254 based on, inter alia,
alleged ineffective assistance of trial counsel (“IAC”).
Because this claim was not exhausted, Blake moved for a stay
and abeyance under Rhines v. Weber, 544 U.S. 269 (2005), so
that he could return to state court and exhaust this claim. The
district court denied the motion. We must decide whether
Blake’s explanation for failure to exhaust this claim met the
“good cause” requirement of Rhines. Because we answer that
question in the affirmative, we reverse and remand.

                              I.

    Blake was convicted in Nevada state court of two counts
of first-degree murder with the use of a deadly weapon and
4                          BLAKE V. BAKER

sentenced to death.1 The convictions were affirmed on
appeal. Blake then filed a state habeas petition, which was
denied. The denial was affirmed on appeal.

    Blake then timely filed this federal petition. In his
amended petition, he argued for the first time that, among
other things, his trial counsel was ineffective for failing to
discover and present to the jury evidence of Blake’s abusive
upbringing and history of mental illness.2

    Blake’s amended petition was a “mixed petition,” i.e., it
contained both exhausted and unexhausted claims. As such,
it was subject to dismissal under Rose v. Lundy, 455 U.S. 509
(1982). Blake thereafter filed a Rhines motion for a stay and
abeyance of his mixed petition so that he could return to state
court fully to exhaust his unexhausted claims. He argued that
he had good cause for failing to exhaust his trial-counsel IAC
claim because he received ineffective assistance of counsel
during state post-conviction proceedings. He argued that his
state post-conviction counsel was ineffective because she
“failed to conduct any independent investigation” and
discover “easily identifi[able]” claims that Blake had endured
“outrageous and severe sexual, physical and emotional abuse
as a child” and “suffered from organic brain damage and
psychological disorders.” In other words, Blake argued that


    1
   Blake was also convicted of one count of attempted murder with the
use of a deadly weapon, for which he was sentenced to two consecutive
terms of 240 months.
    2
   Blake asserts that, during the penalty phase of his trial, the jury heard
only “that he was a happy, talented, good, generous and encouraging
person who had good times growing up and loved God but had made a
huge mistake; and that family members would benefit by continued
communication with him.”
                      BLAKE V. BAKER                          5

his state post-conviction counsel was ineffective for failing to
discover the same evidence underlying his trial-counsel IAC
claim.

     The district court denied Blake’s motion for a stay and
abeyance on the sole ground that Blake failed to establish
good cause. It held that IAC by post-conviction counsel did
not constitute good cause because it was an excuse “that
could be raised in virtually every case.” In denying a
subsequent motion for reconsideration, the district court held
that Blake’s excuse was “too generic” and that, as a matter of
law, “Strickland-type claim[s] of ineffective assistance of
post-conviction counsel cannot constitute good cause for
failing to exhaust.”

    The district court ordered Blake to abandon his
unexhausted claims or face dismissal under Lundy. Blake
elected not to dismiss his unexhausted claims and the district
court dismissed his petition. Blake timely appeals.

                              II.

   We review the district court’s denial of a stay and
abeyance for abuse of discretion. Rhines, 544 U.S. at
278–79.

                              III.

    In Rhines, the Supreme Court held that when a habeas
petitioner files a mixed petition, a district court may stay the
petition and hold it in abeyance to allow the petitioner to
return to state court and present his unexhausted claims. Id.
at 275–76. Before Rhines, the Supreme Court had adopted a
rule of “total exhaustion,” requiring that all claims in a
6                      BLAKE V. BAKER

federal habeas petition be exhausted in state court before a
federal court could act on the petition. See Lundy, 455 U.S.
at 522. Under Lundy, a district court had to “dismiss such
‘mixed petitions,’ leaving the prisoner with the choice of
returning to state court to exhaust his claims or of amending
or resubmitting the habeas petition to present only exhausted
claims to the district court.” Id. at 510.

    The Lundy rule, however, became problematic once
Congress enacted the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). “AEDPA preserved
Lundy’s total exhaustion requirement,” but also “imposed a
1-year statute of limitations on the filing of federal petitions.”
Rhines, 544 U.S. at 274 (citing 28 U.S.C. §§ 2254(b)(1)(A),
2244(d)). “As a result of the interplay between AEDPA’s
1-year statute of limitations and Lundy’s dismissal
requirement, petitioners who come to federal court with
‘mixed’ petitions run the risk of forever losing their
opportunity for any federal review of their unexhausted
claims.” Id. at 275.

    Responding to “the gravity of this problem and the
difficulty it has posed for petitioners and federal district
courts alike,” id. at 275, the Court in Rhines approved the use
of a stay and abeyance in “limited circumstances,” id. at 277,
stating that:

        it likely would be an abuse of discretion for a
        district court to deny a stay and to dismiss a
        mixed petition if [1] the petitioner had good
        cause for his failure to exhaust, [2] his
        unexhausted claims are potentially
        meritorious, and [3] there is no indication that
                      BLAKE V. BAKER                          7

       the petitioner engaged in intentionally dilatory
       litigation tactics.

Id. at 278. The Court explained that restricting the
availability of the stay-and-abeyance procedure to only those
cases that satisfy this three-part test protects AEDPA’s “twin
purposes” of promoting finality of sentences and encouraging
petitioners to exhaust their claims in state court before filing
in federal court. Id. at 277–78.

    Here, the district court denied Blake’s motion for a stay
and abeyance on the sole ground that Blake did not establish
good cause for his failure to exhaust – the first prong of the
Rhines test. The State agreed at oral argument that the second
and third prongs of the Rhines test had been established.
Thus, the only issue before us is whether Blake made a
sufficient showing of good cause.

                              A.

    There is little authority on what constitutes good cause to
excuse a petitioner’s failure to exhaust. In Rhines, the
Supreme Court did not explain the standard with precision.
See 544 U.S. at 275–78. The Court has since addressed the
meaning of good cause in only one other case, recognizing in
dicta that “[a] petitioner’s reasonable confusion about
whether a state filing would be timely will ordinarily
constitute ‘good cause’” to excuse his failure to exhaust.
Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing
Rhines, 544 U.S. at 278).

    Similarly, our cases on the meaning of good cause under
Rhines are also sparse. In Jackson v. Roe, 425 F.3d 654 (9th
Cir. 2005), we held that good cause does not require a
8                     BLAKE V. BAKER

showing of “extraordinary circumstances.” Id. at 661–62. In
Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008), we held
that a petitioner did not establish good cause simply by
alleging that he was “under the impression” that his claim
was exhausted. Id. at 1024. We explained that accepting as
good cause the mere “lack of knowledge” that a claim was
exhausted “would render stay-and-abey orders routine”
because “virtually every habeas petitioner” represented by
counsel could assert that he was unaware of his attorney’s
failure to exhaust. Id.

    Notably, neither Jackson nor Wooten addresses whether
IAC by post-conviction counsel could amount to good cause
under Rhines. The only time that either opinion discusses
IAC in the Rhines’ good cause context is when this court
noted that the petitioner in Wooten had not “developed any
ineffective assistance of counsel argument.” 540 F.3d at
1024 n.2. In fact, no circuit has directly addressed whether
state post-conviction IAC can constitute good cause under
Rhines. Wagner v. Smith, 581 F.3d 410 (6th Cir. 2009),
perhaps comes the closest, recognizing in dicta that a
petitioner “seem[ed] to have a compelling ‘good cause’
argument that his appellate counsel was ineffective for failing
to raise [the petitioner’s unexhausted] claims on appeal.” Id.
at 419 nn.4, 5. We now consider the question.

                              B.

   In rejecting Blake’s good cause argument, the district
court analogized it to the good cause theory rejected in
Wooten:

       Like the petitioner’s claim in Wooten that he
       was under the impression that counsel had
                      BLAKE V. BAKER                          9

       raised unexhausted claims, Blake’s
       justification—i.e., that his post-conviction
       counsel performed ineffectively in failing to
       raise unexhausted claims—is one that could
       be raised in virtually every case.

This analogy misinterprets Wooten and ignores the equitable
nature of the good cause standard. In Wooten, we held that a
mere “lack of knowledge” did not constitute good cause
because “virtually every habeas petitioner, at least those
represented by counsel, could argue that he thought his
counsel had raised an unexhausted claim.” 540 F.3d at 1024.
In other words, we held that unspecific, unsupported excuses
for failing to exhaust – such as unjustified ignorance – did not
satisfy the good cause requirement. We did not hold that the
good cause inquiry involves considering how frequently a
particular type of excuse, viewed in the abstract, could be
raised.

    On reconsideration, the district court’s rejection of
Blake’s good cause contention was even more categorical. It
held that, as a matter of law, ineffective assistance of post-
conviction counsel can never constitute good cause under
Rhines. Thus, the district court doubly erred: first, by
measuring good cause by considering only how often the type
of good cause Blake asserted could be raised; and second, by
holding categorically that post-conviction IAC could never
constitute good cause.

   It is true that a “stay and abeyance should be available
only in limited circumstances”; routinely granting stays
would undermine the AEDPA’s goals of encouraging finality
and streamlining federal habeas proceedings. Rhines,
544 U.S. at 277. But this concern does not require limiting
10                        BLAKE V. BAKER

the definition of good cause to only those excuses that arise
infrequently. Factors (2) and (3) of the Rhines test itself –
that the “unexhausted claims are potentially meritorious,” and
that “there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics,” id. at 278 – are
designed, together with the first factor, to ensure that the
Rhines stay and abeyance is not, contrary to the district
court’s concern, available “in virtually every case.” When
this three-part test is satisfied, there is no overriding concern
of further limiting the availability of a stay and abeyance
because “[i]n such a case, the petitioner’s interest in obtaining
federal review of his claims outweighs the competing
interests in finality and speedy resolution of federal
petitions.” Id.

                                   C.

     The good cause element is the equitable component of the
Rhines test. It ensures that a stay and abeyance is available
only to those petitioners who have a legitimate reason for
failing to exhaust a claim in state court. As such, good cause
turns on whether the petitioner can set forth a reasonable
excuse, supported by sufficient evidence, to justify that
failure. See Pace, 544 U.S. at 416 (“A petitioner’s
reasonable confusion . . . will ordinarily constitute ‘good
cause’ [under Rhines] . . . .” (emphasis added)).3 An assertion
of good cause without evidentiary support will not typically
amount to a reasonable excuse justifying a petitioner’s failure


 3
   Although this guidance is dictum, we note that “Supreme Court dicta
have a weight that is greater than ordinary judicial dicta as prophecy of
what that Court might hold.” United States v. Montero-Camargo,
208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc) (internal quotation
marks omitted).
                          BLAKE V. BAKER                              11

to exhaust. In Wooten, for example, the petitioner’s excuse
that he was “under the impression” that his claim was
exhausted was not a reasonable excuse because no evidence
indicated that the petitioner’s ignorance was justified. To the
contrary, the petitioner’s attorney sent him a copy of his state
petition, which did not mention the unexhausted claim, and
the petitioner did not argue that his attorney provided
ineffective assistance for failing to include the claim.
540 F.3d at 1024 n.2; see also King v. Ryan, 564 F.3d 1133,
1138 (9th Cir. 2009) (holding that the district court did not
abuse its discretion in finding that the petitioner did not
establish good cause when his factual allegations were
“insufficiently detailed”).

    While a bald assertion cannot amount to a showing of
good cause, a reasonable excuse, supported by evidence to
justify a petitioner’s failure to exhaust, will. Blake argued
that he failed to exhaust his trial-counsel IAC claim because
his state post-conviction counsel “failed to conduct any
independent investigation or retain experts in order to”
discover the facts underlying his trial-counsel IAC claim;
namely, evidence that Blake “was subjected to outrageous
and severe sexual, physical and emotional abuse as a child,”
and “suffered from organic brain damage and psychological
disorders.”

   Blake supported his good cause argument with evidence
of his abusive upbringing and history of mental illness,
compiled by his federal post-conviction counsel.4 For


   4
      The State argues that “[t]he only factual arguments regarding
ineffective assistance of post-conviction counsel that are properly before
this Court are the limited, generic allegations contained in the original
motion for stay,” not the arguments and supplemental evidence provided
12                        BLAKE V. BAKER

example, Blake provided a neuropsychological and
psychological evaluation report that highlighted “numerous
neuropsychiatric and psychiatric conditions [Blake suffered
from] at the time of the homicides,” none of which was
presented to the jury or to the state court.5

    Blake also submitted a declaration by the private
investigator hired by his state post-conviction attorney stating
that within a week of receiving “thousands of pages of
discovery on Blake’s case,” Blake’s state post-conviction
attorney told the investigator “that [his] services were no
longer needed.” The investigator declared that he “did not
have a chance to speak with a single witness on Blake’s case
because it was over before [he] finished [his] review of the
discovery materials.”

   Blake also provided thirteen declarations from Blake’s
family and friends. Most of them described the abhorrent
conditions of Blake’s upbringing and family history, in


in Blake’s motion for reconsideration. See Christie v. Iopa, 176 F.3d
1231, 1239 n.5 (9th Cir. 1999) (refusing to “consider evidence or
arguments presented for the first time in a motion for reconsideration”).
Even without considering the additional evidence presented in Blake’s
motion for reconsideration, however, Blake sufficiently set forth good
cause in his motion for a stay and in his federal habeas petition, which he
incorporated into his motion. See Bolin v. McDaniel, No. 3:07-CV-00481-
RLH-VPC, 2011 WL 1750698, at *3 n.2 (D. Nev. May 6, 2011) (noting
that in its good cause analysis, the court considered allegations made in
the petitioner’s “amended habeas petition, wherein he [sought] relief based
on state post-conviction counsel’s allegedly ineffective performance”).
 5
   The report concluded that Blake suffered from, and continues to suffer
from, “Tourette’s Disorder; Dementia/Chronic Brain Damage; Organic
Personality Syndrome/Personality Change due to Brain Damage; Panic
Disorder; and Obsessive Compulsive Disorder.”
                         BLAKE V. BAKER                              13

extensive and gruesome detail. None of these witnesses was
contacted by Blake’s state post-conviction attorney.6 And no
evidence of Blake’s background was ever presented to the
Nevada state courts. This is a sufficient showing that Blake’s
state post-conviction counsel’s performance was defective
under the standard of Strickland v. Washington, 466 U.S. 668,
687 (1984).

    In light of that showing, we hold that the district court
abused its discretion in concluding that Blake had failed to
establish good cause for his failure to exhaust. Blake’s
showing of good cause was not a bare allegation of state post-
conviction IAC, but a concrete and reasonable excuse,
supported by evidence that his state post-conviction counsel
failed to discover, investigate, and present to the state courts
the readily available evidence of Blake’s abusive upbringing
and compromised mental condition.

     Our holding, that IAC by post-conviction counsel can be
good cause for a Rhines stay, is consistent with and supported
by the Supreme Court’s recent opinion in Martinez v. Ryan,
132 S. Ct. 1309 (2012), in which it established a limited
exception to the rule of Coleman v. Thompson, 501 U.S. 722,
753 (1991), that IAC by state post-conviction counsel “at
initial-review collateral proceedings may establish cause for
a prisoner’s procedural default of a claim of ineffective
assistance at trial.” 132 S. Ct. at 1315. We believe that good
cause under Rhines, when based on IAC, cannot be any more
demanding than a showing of cause under Martinez to excuse



 6
   Three individuals – two of Blake’s siblings and Blake’s ex-girlfriend
– were contacted by Blake’s trial attorney, but they were never asked
about Blake’s familial, social, or medical background.
14                        BLAKE V. BAKER

state procedural default.7 Unlike a successful showing of
cause under Coleman and Martinez, an IAC-based showing
of good cause under Rhines only permits a petitioner to return
to state court – not bypass the state court as would be the case
under Coleman – to exhaust his unexhausted claims. Because
a Rhines stay and abeyance does not undercut the interests of
comity and federalism embedded in our habeas jurisprudence,
a Rhines petitioner arguing IAC-based good cause is not
required to make any stronger a showing of cause than a
Coleman/Martinez petitioner. Id. at 1318 (stating that
“cause” is established when a petitioner’s post-conviction
counsel is “ineffective under the standards of Strickland”);
see also Detrich v. Ryan, 740 F.3d 1237, 1243–45 (9th Cir.
2013) (en banc) (plurality opinion) (discussing the showing
of “cause” required under Martinez and Trevino v. Thaler,
133 S. Ct. 1911, 1918 (2013)).

    In sum, we hold that the Rhines standard for IAC-based
cause is not any more demanding than the cause standard
articulated in Martinez. The district court applied an
erroneous legal standard in concluding that Blake failed to
meet the Rhines good cause standard. It therefore abused its
discretion in denying a stay and abeyance. See United States
v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc)
(“A district court would necessarily abuse its discretion if it
based its ruling on an erroneous view of the law . . . .”
(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405

  7
     Because Blake meets the Coleman showing of cause, we leave for
another day whether some lesser showing will suffice to show good cause
under Rhines. The Supreme Court’s statement in Pace, 544 U.S. at 416,
however, that “[a] petitioner’s reasonable confusion about whether a state
filing would be timely will ordinarily constitute ‘good cause’” under
Rhines, suggests that this standard is, indeed, lesser than the cause
standard discussed in Coleman and applied in Martinez.
                          BLAKE V. BAKER                               15

(1990))). Here, Blake’s showing of state post-conviction IAC
satisfies the Rhines good cause standard.

                                  IV.

    The judgment of the district court dismissing Blake’s
habeas petition is reversed and the case is remanded with
instructions to grant the stay and abeyance and for further
proceedings consistent with this opinion.8

    REVERSED and REMANDED with directions.




 8
   Because of our disposition, we need not reach Blake’s challenge to the
district court’s denial of his Rule 60(b) motion for relief from judgment.
