The opinion of the court was delivered by: Ronald M. Whyte United States District Judge
ORDER GRANTING IN PART RESPONDENT'S MOTION TO DISMISS; REQUIRING PETITIONER'S ELECTION REGARDING MIXED PETITION (Docket No. 33)
Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the petition should not be granted. Respondent filed a motion to dismiss the petition for failure to exhaust state remedies and petitioner filed a petition for an order to stay proceedings and to hold the petition in abeyance while he exhausted his claims in state court. The court granted respondent's motion to dismiss and dismissed the petition with leave to amend. The court denied petitioner's motion to stay without prejudice in order for petitioner to file an amended petition containing only his exhausted claims.*fn1
Petitioner filed an amended petition containing his two exhausted claims and a motion to stay the amended petition while he exhausted his additional claims in state court. Thereafter, the court denied petitioner's motion to stay as moot because petitioner had exhausted his claims in the state supreme court. The court granted petitioner three extensions of time to file a second amended petition. Petitioner filed a second amended petition raising six claims for relief. The court ordered respondent to show cause why the second amended petition should not be granted.
Respondent now moves to dismiss the second amended petition as untimely, or alternatively as procedurally barred, untimely or unexhausted. Petitioner has filed an opposition and respondent has filed a reply. Based upon the papers submitted, the court grants respondent's motion to dismiss in part for failure to exhaust state remedies and requires petitioner to make an election as to how he wants to resolve the issue of his unexhausted claims in this court.
A Contra Costa County Superior Court jury convicted petitioner of two counts of attempted murder (Cal. Pen. Code §§ 664, 187), carjacking (Cal. Pen. Code § 215), assault with a deadly weapon (Cal. Pen. Code § 245), and kidnaping (Cal. Pen. Code §209). With enhancements for the personal use of a firearm during the commission of the offense, petitioner was sentenced to a term of life in prison with the possibility of parole, with an additional twentyfive years-to-life, on December 15, 2000. Second Amended Petition ("SAP") at 2-3; Resp. Mot., Ex.1 (Appellant's Opening Brief) at 1-2. On direct appeal, the state appellate court affirmed the judgment on August 9, 2002. Resp. Mot., Ex. II. The state supreme court denied a petition for review on July 23, 2003. Id., Ex. IV. On July 23, 2003, petitioner filed a habeas petition with the state superior court, which was denied on July 30, 2003. Id., Exs. V, VI. On September 2, 2003, petitioner filed an incomplete habeas petition in the state supreme court. Thereafter, petitioner mailed the omitted section of the petition on September 10, 2003. Resp. Ex. VII. The state supreme court summarily denied the habeas petition on May 12, 2004, with citations to In re Lindley, 29 Cal. 2d 709 (1947), In re Dixon, 41 Cal.2d 756 (1953), In re Swain, 34 Cal.2d 300, 304, (1949), and People v. Duvall, 9 Cal. 4th 464, 474 (1995). Id., Ex. VIII.
Petitioner mailed his federal habeas petition, alleging five claims, on June 27, 2004. The federal petition was filed in this court on July 8, 2004. Thereafter, petitioner mailed a habeas petition to the state supreme court on May 11, 2005, which was summarily denied on April 19, 2006, with citations to In re Clark, 5 Cal. 4th 750 (1993) and In re Robbins, 18 Cal. 4th 770, 780 (1998). Petitioner filed his amended federal petition, alleging two exhausted claims, on November 2, 2005. Petitioner mailed a second amended petition on December 22, 2006 alleging six claims for relief. The second amended petition was filed in this court on December 29, 2006.
Respondent moves to dismiss the second amended petition as untimely, or in the alternative to deny claims as procedurally barred, untimely, or unexhausted. In his opposition to respondent's motion, petitioner concedes that some of the claims in the second amended petition may be unexhausted. Pet.'s Opp. at 8; Resp. Reply at 9. Therefore, the court finds that the issue of exhaustion should be addressed before the remaining contentions because the parties do not dispute that the second amended petition is a "mixed" petition containing both exhausted and unexhausted claims. As set forth below, it appears that the majority of the claims in the second amended petition are not exhausted.
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b),(c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). A federal district court must dismiss a federal habeas petition even if it contains only a single claim as to which state remedies have not been exhausted under 28 U.S.C. § 2254(b)-(c). Rose v. Lundy, 455 U.S. at 522. Federal courts have a duty to construe pro se petitions for writs of habeas corpus liberally. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001).
The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give the state "the initial 'opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). The exhaustion requirement is satisfied only if the federal claim (1) has been "fairly presented" to the state courts, Id.; Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996); or (2) no state remedy remains available, Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc).
A federal district court must dismiss a federal habeas petition containing any claim as to which state remedies have not been exhausted. Rose, 455 U.S. at 522. If the petition contains both exhausted and unexhausted claims, that is, it is a "mixed" petition, the district court must instruct the petitioner to choose between two alternatives -- he can dismiss his unexhausted claims and proceed in federal court only with his exhausted claims, or he can request the district court to dismiss the entire petition without prejudice and exhaust his unexhausted claims in state court before returning to federal court. Brambles v. Duncan, 412 F.3d 1066, 1069-71 (9th Cir. 2005).
Additionally, district courts have the authority to issue stays and AEDPA does not deprive them of that authority. Rhines v. Webber, 544 U.S. 269, 277-78 (2005). The district court's discretion to stay a mixed petition is circumscribed by AEDPA's stated purposes of reducing delay in the execution of criminal sentences and encouraging petitioners to seek relief in the state courts before filing their claims in federal court. Id. Because the use of a stay and abeyance procedure has the potential to undermine these dual purposes of AEDPA, its use is only appropriate where the district court has first determined that there was good cause for the petitioner's failure to exhaust the claims in state court and that the claims are potentially meritorious. Id. Moreover, where granting a stay, the district court must effectuate the timeliness concerns in AEDPA by placing "reasonable limits on a petitioner's trip to state court and back." Id. at 278. Prisoners who may run the risk of having the federal statute of limitations expire while they are exhausting their state remedies may avoid this predicament "by filing a 'protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted." Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing Rhines, 544 U.S. at 277-78). Therefore, a petitioner can ask the district court to stay an unexhausted petition while he exhausts his unexhausted claims in state court. A petitioner need not delete his unexhausted claims before asking the district court to issue a stay.
Jackson v. Roe, 425 F.3d 654, 659-61 (9th Cir. 2005). Respondent has submitted a copy of petitioner's petition for review filed in the state supreme court which raised one claim: that the trial court's response to the jury's confusion over the meaning of "beyond a reasonable doubt" was inadequate. Resp. Mot., Ex. III. Respondent also provided a copy of petitioner's state habeas petitions filed in the state superior court and the state supreme court. In his state habeas petitions, petitioner alleged three claims of insufficient evidence and one claim of ineffective assistance of trial counsel. Resp. Mot., Ex. V, VII. On July 30, 2003, the superior court denied petitioner's habeas petition, finding that the sufficiency of evidence claims were not cognizable on habeas corpus and the ineffective assistance of counsel claim was unsupported by a sufficient record. Id., Ex. VI. On May 12, 2004, the state ...