The opinion of the court was delivered by: JAN ADLER, Magistrate Judge
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE REGARDING
PETITIONER'S MOTION FOR STAY AND ABEYANCE AND RESPONDENT'S MOTION
I. Introduction and Procedural Background
Petitioner is a state prisoner who was convicted on June 27,
2001 of first-degree murder during the commission or attempted
commission of a robbery, and for personally using a knife in the
commission of the murder. (Petition at 1.) On September 28, 2001,
the trial court sentenced Petitioner to a state prison term of
life without the possibility of parole on the substantive crime,
and to two consecutive one-year terms on the special circumstance
enhancements. (Pet. at 1.)
Petitioner appealed the judgment to the California Court of
Appeal, Fourth Appellate District, Division One. (Lodgment No. 3.) On July 16, 2003, the Court of Appeal affirmed the judgment
in an unpublished decision. (Lodgment No. 6.)
On August 22, 2003, Petitioner filed a petition for review in
the California Supreme Court, claiming that: (1) the Court of
Appeal erred in applying the Watson*fn1 harmless error
test rather than the Chapman*fn2 harmless error test in
its review of the trial court's decision to present the jury with
a modified version of California Jury Instruction ("CALJIC") No.
2.15; (2) the prosecutor committed misconduct; and (3) the trial
court erred by giving the jury an incomplete special circumstance
verdict form. (Lodgment No. 7.) The California Supreme Court
summarily denied the petition on October 1, 2003. (Lodgment No.
On January 3, 2005, Petitioner filed a Petition for writ of
Habeas Corpus in this Court. In an order issued January 13, 2005,
the Court dismissed Petitioner's case without prejudice because
Petitioner failed to state a cognizable federal claim. Petitioner
was instructed that to have this case reopened he had to file a
First Amended Petition no later than March 11, 2005.
On March 15, 2005, Petitioner filed a First Amended Petition,
claiming that the trial court committed Constitutional error by:
(1) improperly modifying California Jury Instruction ("CALJIC")
No. 2.15; (2) improperly modifying CALJIC NO. 8.81.17; and (3)
presenting the jury with incomplete verdict forms. (Petition at
6, 7, and 9). On April 27, 2005, the Court granted Respondent's
request for a 32-day extention of time in which to file a either
a Motion to Dismiss or an Answer. Respondent filed a Motion to Dismiss on June 15, 2005, alleging that Petitioner
had failed to exhaust his state remedies in his second claim.
(Respondent's Points & Authorities at 1.) On July 11, 2005, the
Court granted Petitioner's request for a one-month extension of
time in which to file his Opposition to Respondent's Motion to
Dismiss. Instead of filing an Opposition, however, Petitioner
filed a Motion for Stay and Abeyance on August 11, 2005.
II. Petitioner's Motion for Stay and Abeyance
In his Motion for Stay and Abeyance, Petitioner requests that
the Court stay his case so he can present his unexhausted second
claim to the state courts. (Petitioner's Motion at 3.)
Under Rhines v. Weber, ___ U.S. ___, 125 S.Ct. 1528 (January
12, 2005), a district court has discretion to grant a stay and
abeyance of 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
the petitioner engaged in intentionally dilatory litigation
tactics." Rhines at 1535. In the current case, Petitioner has
alleged nothing that would indicate he has "good cause" for his
failure to exhaust his second claim. See Rhines at 1528.
Although there is no indication that Petitioner intentionally
delayed his case or that his unexhausted claim is not potentially
meritorious, he does not explain why he did not raise the claim
regarding CALJIC No. 8.81.17 when he filed his habeas petition in
the California Supreme Court.
For the foregoing reasons, this Court recommends that
Petitioner's Motion for Stay and Abeyance should be DENIED. III. Petitioner's Options Regarding His Mixed Petition
If Petitioner's Motion for Stay and Abeyance is denied, he is
left with a "mixed petition," which is subject to dismissal under
Rose v. Lundy, 455 U.S. 509, 522 (1982). However, the Ninth
Circuit has held that, under Rose, it is error to dismiss a
mixed petition without giving the petitioner the option of
foregoing his unexhausted claim in order to avoid dismissal or to
voluntarily dismiss the entire petition without prejudice to
filing a new federal petition after returning to state court and
exhausting. Jefferson v. Budge, ___ F.3d ___ No. 03-16932 (9th
Cir. Aug. 16, 2005) (reaffirming that Rose remains viable even
after Pliler v. Ford, 542 U.S. 225 (2002) and Rhines v.
Webber, 125 S.Ct. 1528 (2005)); Calderon v. United States Dist.
Ct. (Taylor), 134 F.3d 981, 986 (9th Cir. 1998) ("The Supreme
Court in Rose specifically provided habeas petitioners with the
option of amending their applications to delete unexhausted
claims rather than suffering a dismissal."). See James v.
Giles, 221 F.3d 1074 (9th Cir. 2000); James v. Pliler,
269 F.3d 1124 (9th Cir. 2001); but see Pliler v. Ford,
542 U.S. 225 (2004) (holding that Rose only requires dismissal of mixed
petitions, leaving petitioner with choice of abandoning
unexhausted claims or returning to state court to exhaust, "but
nothing in Rose requires that both of these options be equally
attractive, much less suggests that district judges give specific
advisements as to the availability and wisdom of these options").
Therefore, this Court also recommends that Petitioner be
presented with the following options to avoid dismissal of his
petition: 1. First Option: Voluntarily Dismiss the Petition
Petitioner may move to voluntarily dismiss his entire federal
petition and return to state court to exhaust his unexhausted
claims. Petitioner may then file a new federal petition
containing only exhausted claims. See Rose v. Lundy,
455 U.S. 509, 510, 520-21 (1982) (stating that a petitioner who files a
mixed petition may dismiss his petition to "return to state court
to exhaust his claims"). If Petitioner chooses this first option,
he must file a pleading entitled "Voluntary Dismissal of
Petition" with this Court no later than 30 days after the
District Judge issues his decision.
Petitioner is cautioned that any new federal petition must be
filed before expiration of the one-year statute of limitations.
Ordinarily, a petitioner has one year from when his conviction
became final to file his federal petition, unless he can show
that statutory or equitable "tolling" applies. Duncan v.
Walker, 533 U.S. 167, 176 (2001); 28 U.S.C. § 2244(d). Filing a
petition in federal court does not stop the statute ...