The opinion of the court was delivered by: Hon. Leo S. Papas U.S. Magistrate Judge
ORDER GRANTING PETITIONER'S MOTION TO HOLD FEDERAL HABEAS PETITION IN ABEYANCE (Doc. #12)
On March 13, 2008, Petitioner Victor Parra ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus. On April 28, 2008, Respondent filed an Answer to the Petition. On May 29, 2008, Petitioner filed a Motion for Stay and Abeyance ("Motion to Stay & Abey") that is now pending before the Court. Respondent does not oppose the Motion.
Petitioner's Motion seeks an order staying the proceedings so he can exhaust his state court remedies as to claim no. 1 in the Petition. Respondent does not oppose the Motion. Instead, Respondent advocates that Petitioner should be required to return to state court to exhaust claim no. 1 in light of the United States Supreme Court's decision in Cunningham v. California __U.S.__, 127 SCt. 856 (2007)*fn1 (Points & Authorities in Support of Answer at 5-7)
For the reasons outlined below, the Court GRANTS Petitioner's Motion to Stay & Abey.
The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims presented in a habeas corpus proceeding. 28 U.S.C.A. § 2254(b) Rose v. Lundy, 455 U.S. 509, 522 (1982). In Rose v. Lundy, the Supreme Court held "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Id. Such a dismissal leaves "the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." Id. at 510.
Petitioner's Petition contains both exhausted and unexhausted claims. (Points & Authorities in Support of Motion to Stay & Abey at 1-2) Petitioner's claim no. 1 actually states two claims, one of which is exhausted and one of which is unexhausted. In claim no. 1, Petitioner asserts that he was denied his constitutional right to have a jury determine all facts essential to his sentence. This type of claim was specifically addressed in Apprendi v. New Jersey 530 U.S. 466 (2000)*fn2 and Cunningham, supra, a decision that was issued after Petitioner's conviction became final. Petitioner's Apprendi claim was presented to the California Supreme Court. (Respondent's Lodgment No. 4 at 15-17) Therefore, the claim is exhausted. However, Petitioner's Cunningham claim was not, and could not have been, presented to the California Supreme Court. Therefore, Petitioner's Cunningham claim is unexhausted.
When Rose v. Lundy was decided, there was no statute of limitations for filing a federal habeas corpus petition; after exhausting claims in state court, a petitioner could return to federal court "with relative ease." Rhines v. Weber, 544 U.S. 269, 125 S.Ct 1528, 1533 (2005). However, AEDPA changed many aspects of federal habeas corpus proceedings, including the application of the one-year statute of limitations for bringing a habeas corpus petition in federal court, which is set forth in 28 U.S.C. §2244(d). In Rhines, the Supreme Court recognized petitioners can effectively be denied the opportunity for collateral review in federal court "[a]s a result of the interplay between AEDPA's 1-year statute of limitations and [Rose v.] Lundy's dismissal requirement." Rhines, 125 S.Ct. at 1533-1534. Therefore, the Rhines court held that federal courts have discretion to stay mixed petitions and to hold habeas proceedings in abeyance while the petitioner returns to state court to exhaust all claims. at 1534-1535.
The Rhines court also held that stay and abeyance "should be available only in limited circumstances." Id. at 1535. If employed too often, the procedure could undermine the purposes of AEDPA, namely, to reduce delay and streamline federal habeas corpus proceedings. Id. at 1535. In this regard, the Supreme Court stated "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 potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id.
Petitioner argues that he had good cause for his failure to exhaust his unexhausted claim because Cunningham was decided after his conviction became final. Therefore, the state courts should address his claim in light of Cunningham. Respondent does not dispute Petitioner's argument.
Claim is Potentially Meritorious
Petitioner's claim is potentially meritorious. Specifically, Cunningham addresses the same issue raised by Petitioner and the state courts have not had the opportunity to ...