The opinion of the court was delivered by: Nora M. Manella
NORA M. MANELLA, UNITED STATES DISTRICT JUDGE. CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
ORDER DENYING REQUESTS FOR STAY
Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" ("Pet.") on April 22, 2005. Respondent filed an Answer ("Ans.") on May 23, 2005, alleging Petitioner had not exhausted all of his claims as required by 28 U.S.C. sections 2254(b) and (c).
Petitioner filed a "Request to Hold Petition in Abeyance" on June 24, 2005, admitting that two of Petitioner's claims were unexhausted and requesting that the Court stay adjudication pending Petitioner's exhaustion of state remedies. On June 29, 2005, the Court issued an order permitting Petitioner the option of: (1) filing a declaration and/or other evidence in an attempt to demonstrate that Petitioner's request for a "stay and abeyance" met the requirements of Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005), or (2) abandoningáthe unexhausted claims.
On September 13, 2005, Petitioner filed a second "Request to Hold Petition in Abeyance," presenting additional arguments in support of his request for a "stay and abeyance." Respondent filed an opposition on October 11, 2005.
In Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005), the Supreme Court held that a district court has discretion, in "limited circumstances," to stay and hold in abeyance a mixed habeas corpus petition pending exhaustion of state remedies. Id. at 1535. The Court indicated that stay and abeyance is "only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. "Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his exhausted claims are plainly meritless." Id. (citation omitted). The Court also stated that "it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentiallyámeritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. at 1535.
This Court deems it unnecessary to determine whether Petitioner's unexhausted claims are "plainly without merit" or whether Petitioner engaged in "intentionally dilatory litigation tactics." For the reasons discussed below, Petitioner has failed to show good cause for his failure to exhaust his unexhausted claims prior to filing this habeas action.
In Petitioner's two concededly unexhausted claims, Petitioner alleges:
1. Petitioner's due process rights were violated when one of the prosecution's witnesses, Mario Valdez, allegedly provided false testimony that Petitioner's brother threatened Mr. Valdez not to testify at trial (Pet. at 5); and
2. The prosecutor committed misconduct by referring to Mr. Valdez's allegedly false testimony during closing argument (Pet. at 6) .
Petitioner asserts there was good cause for his failure to exhaust these claims, arguing that, until March, 2003, he lacked the necessary evidence to support his allegation that Mr. Valdez testified falsely.*fn1 Petitioner also alleges that he informed his appellate counseláof Mr. Valdez's false testimony, ...