The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY
On November 7, 2006, this Court issued an Order adopting Magistrate Judge Jan M. Adler's Report and Recommendation ("R&R") denying Petitioner Thomas Ouia Haithcock's ("Petitioner") Motion for Stay and Abeyance of his § 2254 Petition for Writ of Habeas Corpus ("Mot. Stay"). [Doc. Nos. 1, 38.] Petitioner filed a Notice of Appeal and Motion for a Certificate of Appealability ("COA"). [Doc. No. 39.] For the reasons set forth below, the Court DENIES Petitioner's Motion for a COA.
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a COA from a circuit justice or district court judge is necessary in order to appeal the "final order in a habeas proceeding in which the detention complained of arises out of process issued by a State Court." See 28 U.S.C. § 2253(c)(1)(A) (2006) (emphasis added); United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue a COA under the AEDPA). In deciding whether to grant a COA, a court must either indicate the specific issues supporting a certificate or state reasons why a certificate is not warranted. See Asrar, 116 F.3d at 1270.
A court may issue a COA only if the applicant has made a "substantial showing" of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2) (2006). If the habeas petition has been denied on procedural grounds, the Supreme Court has determined the petitioner must overcome two hurdles to obtain a COA.*fn1 See Slack v. McDaniel, 529 U.S. 473, 484-85. The petitioner must first show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," and second, "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484. Furthermore, in determining whether a COA should be granted when the underlying petition was procedurally barred, the Court in its discretion may dispose of the application promptly and fairly by addressing the issue more apparent from the record and arguments. See id. at 484-85.
Here, the Court denied Petitioner's Motion for Stay and Abeyance of his exhausted claims. (See Order Denying Pet'r's Mot. For Stay and Abeyance at 4-5.) Petitioner now seeks a COA from this Court pursuant to 28 U.S.C. § 2253 in order to pursue an appeal of the Order Denying Petitioner's Motion for Stay and Abeyance. [Doc. No. 28.]
I. Collateral Order Doctrine
Under 28 U.S.C. § 2253, a COA may only be issued after the final order in a habeas proceeding is rendered. See 28 U.S.C. § 2253. Denial of a stay is generally viewed as an order regarding the internal progress of litigation and therefore is not considered an appealable final order. 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3914.13 (3d ed. 1998). Further, the Supreme Court has held that orders denying stays of litigation are not appealable as interlocutory orders denying injunctions under 28 U.S.C. § 1292(a)(1). See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275-78 (1988); see also Fed. Land Bank of Spokane v. L.R. Ranch Co., 926 F.2d 859, 862 (9th Cir. 1991).
However, the Supreme Court has held that a "small class" of collateral orders are final and appealable under 28 U.S.C. § 1291 even though they do not terminate the underlying litigation. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1994). To qualify for appeal, a collateral order "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesage, 437 U.S. 463, 468 (1978); Praxis Properties v. Colonial Savings Bank SLA, 947 F.2d 49, 54 (3d Cir. 1991). A district court's order granting a motion to stay a petition for writ of habeas corpus has been held by the Ninth Circuit to be an appealable collateral order. See Marchetti v. Bitterolf, 968 F.2d 963, 965 (9th Cir. 1992); see also Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998).
In the case at bar, the Order denying Petitioner's Motion for Stay and Abeyance is an appealable collateral order. The Court's Order conclusively resolved the disputed question, whether Petitioner has met the standard for a stay and abeyance in order to exhaust his unexhausted claims. Additionally, the Court resolved an important issue completely separate from the merits of the action because the issue of whether to grant a stay and abeyance is entirely separate from the due process issues raised in the underlying habeas petition. Finally, the issue is effectively unreviewable on appeal from a final judgment with respect to the habeas petition. As a result of the denial of Petitioner's Motion for Stay and Abeyance, Petitioner is foreclosed from bringing his unexhausted claims in the current petition. Presumably, he will attempt to pursue his unexhausted claims in state court and bring a second petition for writ of habeas corpus once has exhausted those claims. Should he do this, the propriety of the Court's order denying his original Motion for Stay and Abeyance will become moot, and will thus be unreviewable upon final judgment.
II. Certificate of Appealability
Although this Court's Order denying Petitioner's Motion for Stay and Abeyance is appealable under the collateral order doctrine, Petitioner, nevertheless, fails to satisfy the two hurdles necessary to obtain a COA for a petition denied on procedural grounds. See Slack, 529 U.S. at 484-85. Because the denial of Petitioner's Motion for Stay and Abeyance is the most significant issue from the record, the Court will address the second prong of the "substantial showing" test, which requires Petitioner to show that jurists of reason would find it debatable whether the Court was correct in its procedural ruling. Petitioner argues that a COA should be issued because an appeal of the Order denying Petitioner's Motion for Stay and Abeyance would raise a substantial question as to the denial of a constitutional right. (Pet'r's Mot. COA at 1-2.) Petitioner then raises two issues which he intends to bring on appeal: (1) ineffective assistance of trial and appellate counsel, and (2) violation of his federal rights under the Confrontation Clause. (See id. at 2-7.) Petitioner fails, however, to demonstrate that jurists of reason would find it debatable whether the Court was correct in its procedural ruling. For the reasons set forth below, the Court DENIES Petitioner's Motion for a COA.
Federal district courts have limited discretion to hold mixed petitions in abeyance in order to permit a habeas corpus petitioner to return to state court to complete exhaustion of all his claims. See Rhines, 544 U.S. at 277. A district court has discretion to grant a stay and abeyance if it has determined that: (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." Id. at 278. If there was good cause for a petitioner's failure to ...