Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with two applications to proceed in forma pauperis.*fn1 Petitioner has also filed two motions for a stay and abeyance.
Examination of petitioner's second in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
On November 12, 2009, petitioner commenced this action by filing a petition for writ of habeas corpus. On November 18, 2009, petitioner filed an amended petition. Habeas corpus petitions may be amended as provided in the rules of procedure applicable to civil actions. 28 U.S.C. § 2242. Pursuant to the Federal Rules of Civil Procedure, a party may amend his pleading once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. P. 15(a). In the present case, petitioner filed his amended petition before respondent served an answer or other responsive pleading. Accordingly, the case will proceed on petitioner's amended petition.
In his amended petition, petitioner challenges his 2007 Solano County Superior Court judgment of conviction for second-degree murder, second-degree robbery, and assault with a deadly weapon. According to the petition, petitioner entered a no contest plea to the charges. On August 12, 2008, the California Court of Appeal for the First Appellate District affirmed petitioner's conviction on appeal. On November 19, 2008, the California Supreme Court denied review. (Am. Pet. at 2-3.)
In his pending petition, petitioner claims that: (1) the trial court abused its discretion when it refused to order a competency evaluation for him; (2) he received ineffective assistance of counsel because his attorney failed to seek a certificate of probable cause and failed to develop an adequate record for appellate review; (3) he received ineffective assistance of counsel because his attorney failed to negotiate a fair plea bargain on his behalf; (4) his plea bargain lacked an adequate factual basis and is constitutionally flawed; and (5) the underlying errors in his criminal proceedings were structural and require this court's careful evaluation. (Am. Pet. at 5-6I.)
PETITIONER'S MOTIONS FOR A STAY AND ABEYANCE
As noted above, petitioner has filed two motions for a stay and abeyance. In his brief motions, petitioner argues that a temporary stay is necessary so that he can exhaust his unexhausted claims. Petitioner contends that without a stay the statute of limitations will expire on his claims, and he will remain unlawfully confined. According to petitioner, a stay will not prejudice the state nor will it interfere with his current custody status. (Pet'r's Mots. for Stay & Abey. at 1-2.)
STAY AND ABEYANCE PROCEDURES
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 had outlined 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.
King, 564 F.3d at 1135. A petitioner who elects to proceed under the Kelly procedure will be able to amend his petition with his newly exhausted claims if they are timely. If a petitioner's newly-exhausted claims are untimely, he will only be able to amend his petition to include them if they share a "common core of operative facts" with the claims in his original petition. In this regard, the Kelly procedure, unlike the alternative procedure discussed below, is a riskier one for a habeas petitioner because it does not protect a petitioner's unexhausted claims from expiring during a stay. See King, 564 F.3d at 1140-41. See also Duncan v. Walker, 533 U.S. 167, 172-75 (2001) (unlike the filing of a state habeas petition, the filing of a federal habeas petition does not toll the statute of limitations).
As the Ninth Circuit explained in King, the United States Supreme Court has authorized an alternative procedure which it outlined in Rhines v. Weber, 544 U.S. 269, 277 (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."). A petitioner who elects to proceed under the Rhines procedure can, in many instances, avoid an issue with respect to the timeliness of his petition. See King, 564 F.3d at 1140. However, the Supreme Court cautioned that a "stay and abeyance [under the Rhines procedure] should be available only in limited circumstances," and "district courts should place reasonable time limits on a petitioner's trip to state court and back." Rhines, 544 U.S. at 277-78. The Supreme Court explained that district courts should not grant a stay if the petitioner has ...