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September 14, 2005.

C.M. HARRISON, Warden Respondent.

The opinion of the court was delivered by: JAN ADLER, Magistrate Judge

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 On July 16, 2003, the Court of Appeal affirmed the judgment in an unpublished decision.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. 8.)

  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. ยง 2244(d). Filing a petition in federal court does not stop the statute ...

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