The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER (1) GRANTING MOTION TO VACATE STAY; (2) DENYING MOTION TO AMEND PETITION FOR WRIT OF HABEAS CORPUS; AND (3) DENYING REQUEST FOR APPOINTMENT OF COUNSEL (Doc. No. 26, 28)
On July 24, 2006, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus in this court challenging his conviction. On January 8, 2007, Petitioner filed a Motion for a 120-day Stay and Abeyance of the federal proceedings to allow the state court to review two additional claims. Petitioner also filed a Motion to Amend his original federal petition to include the two claims. On June 5, 2007, this court granted the stay but denied the leave to amend as premature. Following the California Supreme Court's denial of his state habeas petition, Petitioner now moves this court to vacate the stay and grant his request for leave to amend, and also requests appointment of counsel. The government does not oppose vacating the stay but does oppose Petitioner's motion to amend.For the reasons set forth below, the court GRANTS Petitioner's motion to vacate the stay, DENIES Petitioner's motion to amend, and DENIES Petitioner's request for appointment of counsel.
On March 18, 2003, Petitioner was convicted in California state court of one count of robbery, one count of second degree burglary, and one count of kidnaping for purpose of robbery. For these convictions, Petitioner was sentenced to an indeterminate term of life in prison and a consecutive five-year term. (Lodgment No. 3.) On April 28, 2005, the California Court of Appeal denied Petitioner's appeal. (Lodgment No. 7.) Thereafter, on July 27, 2005, the California Supreme Court denied a Petition for writ of review. (Lodgment No. 9.) On October 25, 2005, the judgment of conviction was rendered final for purposes of the statute of limitations governing federal habeas petitions.*fn1
On July 24, 2006, within the one year statute of limitations period governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Petitioner filed a Petition for Writ of Habeas Corpus in this court pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner initially alleged: (1) his constitutional right not to be placed twice in jeopardy was violated; and (2) his due process rights were violated because the prosecution failed to prove an element of the offense of kidnaping for robbery. (See Doc. No. 1.)
On December 22, 2006, May 29, 2008, and January 2, 2009, Petitioner filed petitions for writs of habeas corpus in the state superior, appellate, and supreme courts raising two additional ineffective assistance of counsel claims ("IAC" claims). On January 3, 2007, Petitioner filed a Motion to Stay the federal proceedings pending exhaustion of his claims in state court, and also filed a Motion to Amend his federal petition to include the two additional claims. On June 5, 2007, this Court granted the stay but denied the leave to amend as premature. On June 10, 2009, the California Supreme Court denied Petitioner's final state habeas petition. (Lodgement No. 19.)
Petitioner now asks the court to vacate the Stay and permit him to amend his federal Petition with the two new IAC claims. (Doc. No. 26, 28.) Respondent does not oppose vacating the Stay but opposes Petitioner's Motion to Amend as barred by the statute of limitations. (Doc. No. 30.)
A. The 120-Day Stay Should be Vacated
Petitioner seeks to vacate the 120-day stay of the federal proceeding because his state collateral claims are now fully exhausted. Respondent does not oppose vacating the stay. Accordingly, the stay should be vacated.
B. Petitioner's Motion to Amend is Barred by AEDPA's One-Year Statute of Limitations
The AEDPA sets a one-year statute of limitations for state prisoners to file complaints in federal court seeking collateral review ...