The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The court has reviewed the entire record in this action, the Report and Recommendation of Magistrate Judge Rosalyn M. Chapman ("R&R"),*fn1 and petitioner's objections thereto.*fn2 The court notes petitioner's contention that Judge Chapman inappropriately rejected his motion to stay the petition and hold the proceedings in abeyance while he returned to state court to exhaust his state court remedies with respect to claims 5 through 10.*fn3 The court also notes that petitioner's objection to Judge Chapman's conclusion that his amended petition is a mixed petition because he failed to exhaust claims 1 and 4 as federal claims.*fn4 The court addresses each of these objections in turn.
A. Petitioner's Objection to Judge Chapman's Denial of His Stay-and-Abey Motion
Prior to the passage of AEDPA, the Supreme Court held a district court faced with a "mixed petition," that is, a petition that presents some claims that have been exhausted in state court and some that have yet to be fully and finally adjudicated by a state court, should "dismiss [the] 'mixed petition[ ],' leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." Rose v. Lundy, 455 U.S. 509, 510, 522 (1989).*fn5
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court revisited the question of mixed petitions and considered whether a district court could stay, rather than dismiss, a mixed habeas petition. Specifically, the Court considered "whether a federal district court has discretion to stay [a] mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition." Id. at 271. The Court held that a district court has discretion to stay under the "limited circumstances" in which there is "good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 277.
The Rhines Court expressed concern that, as a result of the interplay between Rose's total exhaustion/dismissal requirement and AEDPA's one year statute of limitations, petitioners with mixed petitions "run the risk of forever losing their opportunity for any federal review of their unexhausted claims." Id. at 275. As the Ninth Circuit subsequently noted:
"This risk arises because a petitioner could be faced with the choice of either striking his unexhausted claims and going forward with an exhausted petition or allowing the whole petition to be dismissed, without prejudice, as mixed. Under the the first option, once the other claims had been exhausted, a petitioner could return to federal court. If his original petition had already been decided on the merits, he could include the newly exhausted claims in a subsequent petition. The second petition, however, would be subject to the strict limitations AEDPA places on successive petitions. . . . The second option available under Rose is no more desirable for a petitioner, given the fact that AEDPA's one year statute of limitations will likely have run before a petitioner is able fully to exhaust state court remedies on the mixed petition and return to federal court." Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005).*fn6
Given this dilemma potentially facing petitioners, the Rhines Court held that a district court has discretion to stay a mixed petition to allow a petitioner time to return to state court to present his unexhausted claims. It cautioned, however, that the stay-and-abey procedure must be applied consistently with AEDPA's twin purposes: "reduc[ing] delays in the execution of state and federal criminal sentences" and encouraging state "petitioners to seek relief from state courts in the first instance." Rhines, 544 U.S. at 276. To advance these purposes, Rhines held that the procedure "should be available only in limited circumstances," and that it was "only appropriate when the district court determine[d] there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. . . . And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all. . . .
On the other hand, it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.
In such circumstances, the district court should stay, rather than dismiss, the mixed petition." Id. at 278.
Although the Supreme Court required that petitioner demonstrate "good cause" for his failure to exhaust claims in state court, it has not amplified on that standard. The Ninth Circuit has provided some limited guidance. In Jackson, the Ninth Circuit considered an appeal from a district court decision finding that there were "no extraordinary circumstances that would warrant a stay." Jackson, 425 F.3d at 661 (emphasis omitted). The court held that Rhines' "good cause" standard does not require a showing that "extraordinary circumstances" prevented petitioner from exhausting all claims in state court. Id. at 661-62. Subsequently in Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008), the Ninth Circuit held that a petitioner's contention that he was "'under the impression' that his counsel [had] included all of the issues raised before the California Court of Appeal in his petition before the California Supreme Court" did not constitute good cause under Rhines for staying his federal petition while he returned to state court to exhaust unexhausted claims. Id. at 1024 ("To accept that a petitioner's 'impression' that a claim had been included in an appellate brief constitutes 'good cause' would render stay-and-obey orders routine. Indeed, if the court was willing to stay mixed petitions based on a petitioner's lack of knowledge that a claim was not exhausted, virtually every habeas petitioner, at least those represented by counsel, could argue that he thought his counsel had raised an unexhausted claim and secure a stay," quoting Rhines, 544 U.S. at 277 (emphasis original)).
Given Rhines and its Ninth Circuit progeny, it is apparent that "good cause" requires something less than a showing of extraordinary circumstances, but something more than a mistaken impression that counsel raised a claim before the state Supreme Court on petitioner's behalf. It is also clear that the "good cause" standard must be applied in a way that will advance AEDPA's dual purposes: "to reduce delays in executing state and federal criminal sentences and to streamline federal ...