FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se and in forma pauperis, commenced this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is petitioner's renewed motion for a stay and abeyance. Respondent has filed an opposition to the motion, and petitioner has filed a reply.
On May 10, 2005, in the Sutter County Superior Court, petitioner was convicted of, inter alia, driving with a willful or wanton disregard for the safety of persons or property while fleeing from a peace officer. The trial court sentenced petitioner to 27 years to life in state prison. (Pet. at 2.) The California Court of Appeal affirmed the judgment of conviction on appeal and the California Supreme Court denied review. Other than his direct appeal, at the time petitioner filed his federal habeas petition, he had not pursued any other challenges to his conviction. (Id. at 3.)
On August 4, 2008, petitioner filed a fully exhausted petition for writ of habeas corpus in this court. Therein, he asserts one claim, specifically, that there was insufficient evidence to support his felony conviction and that his rights under the Fifth Amendment and Fourteenth Amendment were therefore violated. (Pet. at 5, Mem. of P. & A. 13-21.) On August 25, 2008, petitioner filed a motion for a stay and abeyance. On September 8, 2008, the undersigned denied petitioner's motion without prejudice to his filing of a renewed motion that
(1) showed good cause for petitioner's failure to exhaust all claims prior to filing this action, (2) demonstrated why each of petitioner's unexhausted claims is potentially meritorious, (3) described the status of any state court proceedings on the unexhausted claims, and (4) demonstrated that petitioner has acted with diligence in pursuing additional claims. As noted above, petitioner has now filed a renewed motion for a stay and abeyance
On July 2, 2009, the undersigned issued an order summarizing the background of this case as well as the arguments of the parties. In addition, the undersigned explained that the United States Court of Appeals for the Ninth Circuit recently analyzed the two procedures available to habeas petitioners who wish to proceed with exhausted and unexhausted claims for relief. See King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). First, the Ninth Circuit explained "the Kelly procedure," which it outlined it in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Under the three-step Kelly procedure,
(1) the petitioner amends his petition to delete any unexhausted claims, (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted claims, and (3) petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition.
The Ninth Circuit also explained in King that the United States Supreme Court had authorized an alternative procedure in Rhines v. Weber, 544 U.S. 269 (2005). Under the Rhines procedure, the petitioner need not amend his petition to delete unexhausted claims. Instead, the petitioner may proceed on a "mixed petition," and his unexhausted claims remain pending in federal court while he returns to state court to exhaust them. See King, 564 F.3d at 1140; Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) ("Rhines concluded that a district court has discretion to stay a mixed petition to allow a petitioner time to return to state court to present unexhausted claims.").
The undersigned determined that the court could stay petitioner's fully exhausted petition under the Kelly procedure. The court also determined that petitioner had established good cause, so the court could stay his petition under the Rhines procedure. The undersigned observed, however, that petitioner's original petition in this case is fully exhausted and explained that, under the Rhines procedure, the court has the discretion to stay a "mixed petition." The undersigned further explained that petitioner could potentially avoid a timeliness issue with respect to his federal petition if he filed an amended petition containing all of his exhausted and unexhausted claims before the court issued any stay in this action. See King, 564 F.3d at 1140 & 1141 ("the Kelly procedure, unlike the Rhines procedure, does nothing to protect a petitioner's unexhausted claims from untimeliness in the interim"); see also Mayle v. Felix, 545 U.S. 644 (2005) (petitioner may amend his petition after the expiration of the statute of limitations period if the new claims share a "common core of operative facts" with the claims in the pending petition). Under the circumstances of the case, the undersigned ordered petitioner to inform the court on how he wished to proceed and directed petitioner to either (a) file a declaration indicating he wished to proceed under the Kelly procedure or (b) file a declaration indicating he wished to proceed under the Rhines procedure, together with an amended petition that contained all of his exhausted and unexhausted claims.
In response to the court's order, petitioner has timely filed a declaration, explaining that all of his unexhausted claims are still pending at the California Supreme Court and that he wishes to proceed under the Rhines procedure. He has also filed an amended petition containing all of his exhausted and unexhausted claims. As the court previously explained, petitioner has established good cause to stay his petition under the Rhines procedure. Accordingly, for the reasons discussed herein, as well as ...