The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [DOC. # 20]; OVERRULING PETITIONER'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; DENYING PETITIONER'S MOTION FOR STAY AND ABEYANCE [DOC.# 18]; AND ADVISING PETITIONER OF HIS OPTIONS FOR FURTHER PROCEEDINGS IN THIS CASE
On April 1, 2008, Petitioner, a state prisoner appearing pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction and sentence. In his petition, Petitioner alleges the following grounds for relief:
(1) ineffective assistance of trial counsel for failing to object to the admissibility of a recorded interview; (2) ineffective assistance of trial counsel for failing to pursue an investigation into whether Petitioner had been provided and waived his Miranda rights; (3) violation of due process based on insufficient evidence supporting the gang enhancement charge; (4) violation of due process for failure to bifurcate the gang enhancement charge; (5) violation of due process for admission of opinion testimony; and (6) insufficient evidence as to the robbery conviction relating to Paul Savage. On April 10, 2008, the Honorable Barbara L. Major, United States Magistrate Judge, issued an order advising Petitioner that the petition appeared to contain unexhausted claims, giving him until May 13, 2008 to choose one of four options.
Petitioner failed to respond to the magistrate judge's order. The magistrate judge then submitted a report and recommendation to this Court, recommending that the petition be dismissed without prejudice as unexhausted. On June 26, 2008, Petitioner filed objections to the magistrate judge's report. After reviewing the magistrate judge's report, this Court found that Claims 1, 2 and 6 were unexhausted, and gave Petitioner the options of abandoning the unexhausted claims, voluntarily dismissing the petition in order to return to state court, or filing a motion seeking a stay of federal proceedings that would allow him to return to state court in order to exhaust his unexhausted claims.
On November 3, 2008, Petitioner chose to file a motion requesting a stay of the instant petition. After the motion was fully briefed by the parties, the magistrate judge, on January 26, 2009, issued a report recommending Petitioner's motion to stay be denied and Petitioner be directed to choose between the remaining options for further proceedings in this case. Petitioner filed objections to that report on February 18, 2009.
The district court's role in reviewing a magistrate judge's report and recommendation is set forth in Title 28, United States Code, Section 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report... to which objection is made," and "may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id. It is well-settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those parts of a magistrate judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985).
In his motion, Petitioner requests that the Court grant a stay of the instant petition so that he may exhaust his unexhausted claims before the state court. After a careful review of the pleadings and the relevant exhibits submitted by both parties, the magistrate judge recommended that this Court deny Petitioner's motion to stay because, despite Petitioner's assertions to the contrary, nothing in the record suggested that the unexhausted claims were ever presented to the California Supreme Court. Furthermore, Petitioner had neglected to make a good cause showing as to why he failed to exhaust his claims in state court.
As explained by the magistrate judge in the report, the exhaustion of state remedies is a prerequisite to a federal court's consideration of claims presented in a habeas corpus proceeding. Rhines v. Weber, 544 U.S. 269, 273 (2005). A habeas petition that contains cognizable exhausted and unexhausted claims, like the petition at issue, is called a "mixed petition." Id. at 271. A petitioner who files a mixed petition has four options: (1) demonstrate exhaustion; (2) voluntarily dismiss the petition and return to state court to exhaust the unexhausted claim(s); (3) formally abandon the unexhausted claim(s) and proceed solely with the exhausted claim(s); or (4) file a motion to stay federal proceedings while returning to state court to exhaust the unexhausted claim(s). See Rose v. Lundy, 455 U.S. 510, 520-21 (1982) (superseded by statute on other grounds in 28 U.S.C. § 2254 (c)); Rhines, 544 U.S. 277-78. In Rhines, the Supreme Court held that a district court may stay a "mixed petition" in "limited circumstances," so that a petitioner may present his unexhausted claims to the state court without losing his right to federal habeas review, as a result of the one-year statute of limitations imposed by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). Id. at 273-75; 28 U.S.C. § 2244(d). Further, the Rhines court stated that it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if: (1) the petitioner had good cause for his failure to exhaust; (2) his unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. Id. at 277, see Wooten v. Kirkland 504 F.3d 1019, 1022 (9th Cir. 2008). In such circumstances, the district court should stay, rather than dismiss, the mixed petition. See Rose, 455 U.S. at 522. However, if a plaintiff fails to demonstrate good cause, the court need not address the remaining two factors of Rhines. See Wooten, 504 F.3d at 1023. If a stay is not appropriate, the well-established rule that the district court is not to retain jurisdiction over mixed petitions applies. Id. at 1026.
After a review of the record, the magistrate judge determined the evidence presented by Petitioner in support of his claim that he had, in fact, exhausted Claims 1, 2 and 6, failed to demonstrate the claims had been presented to the California Supreme Court as Petitioner asserts. Doc. # 20 at 7. Petitioner objects to this finding, claiming, as he previously claimed in opposition to Respondent's motion, that he had presented his unexhausted claims to the California Supreme Court. Doc. # 18 at 1-2. This Court's de novo review of the record reveals the magistrate judge correctly found the claims had not been presented to the state's highest court. Therefore, this Court agrees with the analysis provided by the magistrate judge and overrules Petitioner's objection.
The magistrate judge also found that Petitioner failed to demonstrate "good cause" as to why he did not exhaust all of his claims. Doc. # 20 at 6-7 (citing, inter alia, Wooten v. Kirkland, 540 F.3d 1019). In Wooten, the habeas petition contained a claim that, unbeknownst to the petitioner, his counsel had omitted from the state supreme court petition. 540 F.3d at 1022. The district court denied habeas review of the omitted claim due to petitioner's failure to exhaust and also denied petitioner's request for a stay to exhaust that claim. Although petitioner argued on appeal that he believed the omitted claim had been fully exhausted, the ...