The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
MEMORANDUM AND ORDER DENYING RESPONDENT'S MOTION TO DISMISS AND GRANTING PETITIONER'S REQUEST FOR A STAY PROCEEDINGS
On December 16, 2008, Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" pursuant to 28 U.S.C. section 2254. Petitioner contends the following: (1) violation of Evidence Code §§352 and 1101(b); and (2) a tainted jury panel claim. (See Petition at p. 5.)
On January 21, 2009, Respondent filed a "Notice of Motion and Motion to Dismiss Petition for Writ of Habeas Corpus" on the grounds that the Petition contains an unexhausted claim. Specifically, Respondent contends that Petitioner failed to exhaust Ground Two, a tainted jury panel claim, in the California Supreme Court.
On January 28, 2009, the Court issued a Minute Order ordering Petitioner to file an Opposition or Statement of Non-Opposition to the Motion to Dismiss addressing the issue of exhaustion. Petitioner, if he conceded that Ground Two was not exhausted, was ordered in light of Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 1535 (2005) to advise the Court whether good cause exists for Petitioner's failure to exhaust this claim and whether Petitioner has been diligent.
On February 20, 2009, Petitioner filed an "Opposition to Respondent's Motion to Dismiss", requesting the Court to grant him a Stay to exhaust Ground Two.
A. Exhaustion Requirement Generally
Federal habeas petitioners challenging the legality of custody pursuant to a state court judgment must first exhaust any remedies available in the state courts, unless circumstances exist which make such remedies ineffective. (28 U.S.C. §2254(b)(1)) This exhaustion requirement is not met if a petitioner has the right, under state law, to raise the claims presented in any available state procedure. (28 U.S.C. §2254(c)) A state, through counsel, may waive the exhaustion requirement, but must do so expressly. (28 U.S.C. §2254(b)(3))
The exhaustion requirement is designed to protect the role of the state courts in the enforcement of federal law and to prevent disruption of state judicial proceedings. Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed. 2d 379 (1982). A petitioner has exhausted state remedies if he has fairly presented each and every one of his federal claims to the highest state court with the jurisdiction to consider them. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed. 2d 865 (1995) (per curiam), citing Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed. 2d 438 (1971); Harmon v. Ryan, 959 F.2d 1457, 1460 (9th Cir. 1992). A claim has been fairly presented if the petitioner has described the operative facts and legal theory upon which his claim is based. Bland v. California Department of Corrections, 20 F.3d 1469, 1473 (9th Cir.), cert. denied 513 U.S. 947 (1994). Further, the petitioner must have alerted the state court that a claim is asserted under the United States Constitution. Duncan, 513 U.S. at 365; Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996). If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court. Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998); citing Johnson, 88 F.3d at 829; see also Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996).
Unless the state expressly waives the exhaustion requirement, a federal court cannot grant relief requested in a state prisoner's habeas petition if the prisoner has not exhausted state remedies with respect to each and every claim contained in the petition. 28 U.S.C. §2254(b)(1); Reutter v. Crandel, 109 F.3d 575, 578 (9th Cir.), cert. denied, 118 S.Ct. 142 (1997) (even petitions containing both exhausted and unexhausted claims are subject to dismissal).
Here, Respondent contends that Petitioner has filed a "mixed" petition; thus, the petition should be dismissed.
In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 1535 (2005), the United States Supreme Court held that a federal district court may stay a mixed habeas petition to allow a petitioner to present unexhausted claims to the state court. A District Court should stay, rather than dismiss, a mixed habeas petition if the Petitioner has good cause for his failure to exhaust, his unexhausted claims are meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. Id. at 278.
In Rhines, the Supreme Court noted that because of the total exhaustion requirement in Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198 (1982) and AEDPA's one-year statute of limitations, petitioners with mixed petitions "run the risk of forever losing their opportunity for any federal review of their unexhausted claims." Rhines, 125 S.Ct. at 1533. This risk arises because a petitioner could be faced with a choice of either striking his unexhausted claims and going forward with an exhausted petition or allowing the whole petition to be dismissed, without prejudice, as mixed. Under the first option, if Petitioner's original petition had already been decided on the merits, he could not include the newly exhausted claims in a subsequent petition, as the second petition would be subject to the strict limitations AEDPA places on successive petitions. See 28 U.S.C. §2244(b). The second option available under Rose is no more desirable for ...