The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction for first degree murder. This action is proceeding on the original petition filed August 12, 2008, raising the following claims: 1) the trial court improperly precluded defense expert Dr. Pittel from testifying regarding petitioner's mental state at the time of the offense; 2) the trial court improperly precluded Dr. Pittel from testifying that petitioner's co-defendant*fn1 corroborated petitioner's statement that he had used methamphetamine; 3) the prosecutor committed misconduct by misstating the law of manslaughter; 4) the trial court improperly denied his motion for a new trial which presented new evidence regarding petitioner's mental state; 5) the lying in wait special circumstance is vague, overbroad and arbitrarily applied; 6) trial counsel was ineffective for failing to call witness Lapuste.
Pending before the court is petitioner's May 18, 2009, motion to stay this action pending further exhaustion. On June 18, 2009, a hearing was held regarding this motion. Wanda Hill Rouzan appeared on behalf of respondent. Eric Milthuaup appeared on behalf of petitioner. For the following reasons, the court recommends that the motion be denied.
In the pending motion, petitioner seeks a stay so that he may exhaust claim 6 (ineffective assistance of counsel). Petitioner also states that he will exhaust claim 5 (challenge to lying in wait special circumstance) because respondent contends that it has not been raised in state court, although he believes this claim is exhausted.
The court first considers whether claim 5 is exhausted. The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).
In his state appellate opening brief, petitioner argued the lying in wait special circumstance was unconstitutionally overbroad in violation of state law. Respondent's Lodged Document 1, pp. 53-55. In his petition for review, petitioner argued that the lying in wait special circumstance was unconstitutionally overbroad in violation of the United States Constitution. Respondent's Lodged Document 3, p. 12.
California Rule of Court 8.500 provides that on petition for review, the California Supreme Court will not consider an issue that the petitioner failed to timely raise in the Court of Appeal. Cal. Rule of Court 8.500(c). Because petitioner did not raise his federal constitutional claim in his state appellate brief, the California Supreme Court did not consider this claim raised in the petition for review. Claims are not fairly presented if they are raised in a procedural context in which the merits will not be considered absent special circumstances. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056 (1989). Accordingly, the court finds that claim 5 is not exhausted because it was not presented in the proper procedural context.
In the reply brief and at oral argument, petitioner's counsel argues that Cal. Rule of Court 8.508 permits abbreviated petitions for review. Petitioner contends that his brief statement of his claim in his petition for review exhausted claim 5. Had petitioner raised his federal claim in his state appellate brief, the court might find his claim exhausted, despite his abbreviated briefing of the claim. However, because this claim was not raised in the state appellate brief, the court need not reach the issue of whether the claim was adequately pled in the petition for review.
Accordingly, the court now turns to petitioner's request to stay. In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005), the Supreme Court held that federal district courts have the authority to stay mixed petitions pending further exhaustion in limited circumstances. Rhines, 544 U.S. at 277, 125 S.Ct. 1528. "[S]tay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court" and where petitioner's unexhausted claims are not "plainly meritless." Id. Even if petitioner demonstrates the requisite good cause and presents potentially meritorious claims, a stay still will not be appropriate if there is any indication that petitioner engaged in intentionally dilatory litigation tactics. Id. at 278.
In King v. Ryan, 564 F.3d 1133 (9th Cir. 2009), the Ninth Circuit recently held that in addition to the stay procedure authorized in Rhines, district courts also have discretion to permit petitioners to follow the three-step stay-and-abeyance procedure approved in Calderon v. U.S. Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir. 1998) and Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Pursuant to the Kelly procedure, (1) a petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition. Kelly, 315 F.3d at 1070-71. The Kelly stay-and-abeyance procedure has no requirement of a good cause showing or that the claims are potentially meritorious.*fn2
At the June 18, 2009, hearing, the court discussed with petitioner's counsel whether he opted for a Rhines stay or a Kelly stay. The court advised counsel that were he to proceed with a Kelly stay, he risked having his claims found barred by the statute of limitations following exhaustion. In particular, the court discussed the potential that the unexhausted claims would not relate back to any of the exhausted claims. Counsel informed the court that he wished to proceed with a Rhines stay. Accordingly, the court considers petitioner's motion to stay pursuant to the standards in Rhines.
Rhines does not go into detail as to what constitutes good cause for failure to exhaust, and the Ninth Circuit has provided no clear guidance beyond holding that the test is less stringent than an "extraordinary circumstances" standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). Several district courts have concluded that the standard is more generous than the showing needed for "cause" to excuse a procedural default. See, e.g., Rhines v. Weber, 408 F.Supp.2d 844, 849 (D.S.D. 2005) (applying the Supreme Court's mandate on remand). This view finds support in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807 (2005) where the Supreme Court acknowledged that a petitioner's "reasonable confusion" about the timeliness of his federal petition would generally constitute good cause for his failure to exhaust state remedies before filing his federal petition. 544 U.S. at 416-17, 125 S.Ct. 1807.
Even under this more lenient standard, the court finds that petitioner has not shown good cause for his failure to exhaust claims five and six. As to claim five (challenge to lying in wait special circumstance) it appears that petitioner inadvertently failed to raise this claim in his state appellate briefing, thus dooming any consideration of it in his petition for review. This does not constitute good cause for failing to previously exhaust this claim.
Turning to claim six, petitioner alleges that his counsel was ineffective for failing to call Emmanuel Lapuste as a defense witness in support of his manslaughter defense. Lapuste apparently would have corroborated information that petitioner gave to his testifying doctor expert that he had consumed a large amount of methamphetamine in the days prior to the murder. See Respondent's Lodged Document 1, Petitioner's Appellate Brief, pp. 37-38. Without this corroborating information, the expert doctor testified that he could not offer an opinion as to the effects of the ...