The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) DENYING MOTION FOR STAY AND ABEYANCE (Doc. No. 7); and (2) DISMISSING GROUNDS TWO AND THREE OF FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. No. 4).
Petitioner Bradley Queen ("Petitioner"), a state prisoner represented by counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 4.) Presently before the Court is Petitioner's motion to stay and hold his petition in abeyance. (Doc. No. 7.) For the reasons stated herein, the Court DENIES Petitioner's motion.
I. Petitioner's State and Federal Habeas Corpus Petitions
On May 21, 2008, the state Supreme Court denied Petitioner's petition for review of the state Court of Appeal's affirmance of his California state court convictions. Petitioner did not file a petition for a writ of certiorari.
On July 8, 2009, over a year after the state Supreme Court denied his petition for review, Petitioner proceeding pro se filed a state habeas corpus petition in Superior Court.*fn1 On August 31, 2009, the Superior Court denied the petition, finding Petitioner had not made a prima facie showing he was entitled to relief. (Pet.'s Application to Stay, Ex. A at 2.)
On August 19, 2009, while the state petition was still pending in Superior Court, Petitioner proceeding by and through counsel filed a federal habeas corpus petition. Petitioner filed the petition six weeks before the expiration of the one-year statute of limitations period for federal habeas corpus claims set forth by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1). Petitioner raises three grounds for relief:*fn2 (1) Petitioner was denied due process and his right to a fair cross section of jurors by the trial court's refusal to continue the trial so that he could challenge the method of selecting the jury panel; (2) he was denied effective assistance of trial counsel,*fn3 and; (3) he was denied effective assistance of appellate counsel because his attorney did not challenge on direct appeal the trial court's denial of Petitioner's request for juror information to support his claim of jury misconduct. (Pet. for Writ of Habeas Corpus at 4, 7, 12.)
It is undisputed that this is a "mixed" federal petition consisting of exhausted and unexhausted claims. (Objections at 2.) Petitioner exhausted the first claim,*fn4 but concedes he did not exhaust the second and third claims.*fn5 (Objections at 2.)
II. Petitioner's Motion for Stay and Abeyance
On November 15, 2009, Petitioner filed the instant motion, requesting the Court hold his federal habeas corpus petition in abeyance while he presents his unexhausted claims to the state court. (Doc. No. 7.) If the Court does not stay the proceedings, he will be time-barred from bringing those claims back to federal court. In the alternative, Petitioner requests that the Court allow him to proceed with his exhausted claim pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), with leave to amend his petition to add the unexhausted claims once he has completed the habeas corpus procedure in state court. (Objections at 6.)
On December 11, 2009, Respondent filed an opposition to Petitioner's motion. (Doc. No. 13.) On December 29, 2009, Petitioner filed a reply. (Doc. No. 15.) On March 4, 2010, Magistrate Judge Ruben B. Brooks issued a Report and Recommendation ("Report"), recommending the Court deny Petitioner's motion for a stay and abeyance. (Doc. No. 18.) On April 19, 2010, Petitioner filed Objections to the Report. (Doc. No. 21.) Respondent has not filed a reply.
Because Petitioner objects to the Report in its entirety, the Court reviews the Report de novo.