The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
(1) ADOPTING IN PART AND DECLINING TO ADOPT IN PART THE FINDINGS AND CONCLUSIONS OF UNITED STATES MAGISTRATE JUDGE [Doc. No. 24];
(2) DENYING RESPONDENT'S MOTION TO DISMISS [Doc. No. 7];
(3) GRANTING MOTION TO HOLD PETITION IN ABEYANCE [Doc. No. 13];
(4) DENYING MOTION TO AMEND PETITION [Doc. No. 14]; AND,
(5) DENYING MOTION FOR EXTENSION OF TIME [Doc. No. 28]
Petitioner is a California prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner is challenging his San Diego County Superior Court conviction on twelve counts of armed robbery, the finding that he has suffered three prior serious felony convictions which constituted "strikes" under California's Three Strikes law, and his sentence of 255 years-to-life in state prison. (Pet. at 1.) Petitioner claims that his federal right to due process was violated by: (1) the trial court's failure to limit the cross-admissibility of evidence; (2) the failure of the prosecutor to provide notice regarding the factual basis for one of the prior felony convictions; (3) the use of the prior felony convictions to enhance his sentence in violation of contract principles; (4) the dual use of the prior felony convictions in sentencing; and (5) ineffective assistance of appellate counsel regarding the type of claims and the manner in which they were presented on direct appeal. (Pet. at 8-9.) Petitioner alleges in the Petition that all five claims have been presented to the state supreme court. (Id.)
Respondent Warden Walker moves to dismiss the Petition on the basis it was filed after expiration of the one-year statute of limitations set forth in 28 U.S.C. § 2244(d), and on the basis that it is a mixed petition (one containing exhausted and unexhausted claims), because claim four was not presented to the state supreme court. (Doc. No. 7.) Following an extension of time, Petitioner filed an Opposition to Respondent's Motion, along with a Motion for Stay and Abeyance and a Motion to file a First Amended Petition. (Doc. Nos. 12-14.) Petitioner argues that his Petition is timely because he is entitled to tolling of the statute of limitations while his state habeas petitions were pending, but admits that he did not exhaust his state court remedies with respect to claim four and that he is proceeding with a mixed Petition. (Doc. No. 12 at 6-11.) Petitioner opposes dismissal of the Petition as mixed and requests the Court to stay this action while he returns to state court to exhaust his state court remedies as to claim four and four additional claims which challenge the use of his prior felony convictions to enhance his sentence. (Id. at 11-12; Doc. No. 13 at 9-10.) Petitioner also requests permission to file a First Amended Petition in which he abandons claim four, on the condition that this action is stayed while he exhausts his state court remedies, and on the condition that he be allowed to file a Second Amended Petition presenting all his claims after his state court remedies are exhausted. (Doc. No. 13 at 2.) Petitioner argues that he has been diligent in his attempts to exhaust his state court remedies because he is currently proceeding with his unexhausted claims in the state courts. (Id. at 9-11.) Although Petitioner recognizes that in order to be entitled to a stay he must, in addition to demonstrating diligence, show good cause for his failure to timely exhaust his state remedies, he made no effort to demonstrate good cause in the opening brief filed in support of his Motion for Stay and Abeyance. (Id. at 8-9.)
Respondent has filed separate Oppositions to Petitioner's Motions. (Doc. Nos. 19-20.) Respondent argues that Petitioner has not attempted to demonstrate good cause for his failure to exhaust, and that he is unable to show good cause because the new claims involve sentencing issues which Petitioner was or should have been aware of at the time of his direct appeal. (Doc. No. 19-2 at 4; Doc. No. 20-2 at 4-5.) Petitioner filed a Reply, arguing that good cause exists as to claim four because it was raised on direct appeal but was not included in the petition for review due to his appellate counsel's negligence, and that good cause exists as to the remaining unexhausted claims "because of delays in obtaining discoverable material and claims recently made meritorious by petitioner now having possession and introduction of discoverable materials as evidence into Petitioner's petition." (Doc. No. 22-2 at 2-3.)
Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Anthony J. Battaglia, which recommends denying Petitioner's Motions, denying Respondent's Motion to Dismiss in part to the extent it seeks dismissal of the Petition as untimely, and granting Respondent's Motion to Dismiss in part to the extent it seeks dismissal of the Petition as mixed unless Petitioner chooses to delete the unexhausted claim from the Petition and proceed with his exhausted claims. (Doc. No. 24.) The Magistrate Judge found the Petition to have been timely filed because statutory tolling applied for the time Petitioner was pursuing one complete round of state post-conviction collateral review, and that the citation to In re Clark, 5 Cal.4th 750 (1993) by the state supreme court in denying the final state habeas petition did not support a finding, as argued by Respondent, that the state habeas petition was untimely under state law. (R&R at 4-7.) The Magistrate Judge also found that Petitioner made no attempt to demonstrate good cause for not having exhausted his state court remedies in a timely manner, and that his new claims do not rely on newly discovered evidence or facts which Petitioner would not have been aware of when he presented his other claims to the state courts. (R&R at 3-4.) Petitioner has filed objections to the R&R. (Doc. No. 27.) Petitioner has also filed a Motion for an extension of time, in which he seeks an extension of the deadline provided in the R&R for him to choose between abandoning his unexhausted claims and dismissing the entire Petition. (Doc. No. 28.)
The Court has reviewed the R&R and the Objections thereto pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). For the following reasons, the Court adopts in part and declines to adopt in part the findings and conclusions of the Magistrate Judge, denies Respondent's Motion to Dismiss, grants Petitioner's Motion for Stay and Abeyance, and denies Petitioner's remaining motions.
I. Statute of Limitations
The Court adopts in full the Magistrate Judge's findings and conclusions regarding the one-year statute of limitations. The Petition is timely for the reasons set forth in the R&R, to which Respondent has not objected. (R&R at 4-7.) Respondent's Motion to Dismiss is DENIED ...