ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment of conviction originally entered against him in 2006 by the Sacramento County Superior Court. Pending before the court is petitioner's renewed motion for a stay and abeyance.
On August 7, 2009, petitioner filed a petition for writ of habeas corpus along with a motion for a stay and abeyance. In that motion for a stay and abeyance, petitioner conceded that three of the seven claims presented in his federal habeas petition are unexhausted. Petitioner explained that his attorney failed to raise these issues, and one other, on direct appeal. Therefore, petitioner requested a stay so that he could return to state court and exhaust all his claims before proceeding with his federal habeas petition. According to plaintiff, the statute of limitations for the filing of his federal habeas petition was to soon expire. (Mot. for Stay & Abey. at 1.)
On October 1, 2009, the court issued an order denying petitioner's motion for a stay and abeyance without prejudice to petitioner filing a renewed motion. In its order, the court explained to petitioner that in a renewed motion for a stay and abeyance he must (1) show good cause for his failure to exhaust all claims before filing this federal habeas action; (2) demonstrate why each of his unexhausted claims is potentially meritorious; (3) describe the status of any state court proceedings; and (4) show that he has acted diligently in pursuing his unexhausted claims.
On October 16, 2009, petitioner filed the renewed motion for a stay and abeyance now pending before this court. Therein, petitioner again expressed concern regarding the applicable statute of limitations. He assured the court that his renewed motion for a stay and abeyance has been made in good faith and that he would diligently pursue the exhaustion of all his claims in state court. He also provided the court with an update on the status of his state court proceedings, explaining that on October 30, 2009, he was to be returned to the state trial court for an "adjustment" to his sentence. Petitioner stated that he was unsure whether the sentence "adjustment" would render his federal habeas claims moot. (Renewed Mot. for Stay & Abey. at 1-2.)
On March 3, 2010, the court ordered respondent to file an opposition or statement of non-opposition to petitioner's renewed motion for a stay and abeyance. Respondent filed a timely opposition on April 28, 2010. In that opposition, respondent argues that the court should deny petitioner's renewed motion for a stay and abeyance because a final state court judgment has yet been entered in petitioner's underlying criminal case. Respondent also argues that federal courts should refrain in such a case from intervening in state court proceedings that are (1) ongoing; (2) implicate important state interests; and (3) afford the parties an adequate opportunity to raise the federal issue. (Opp'n at 2-3.)
I. Renewed Motion for a Stay and Abeyance
The underlying purpose of a stay and abeyance is to allow, when appropriate, a petitioner to exhaust his unexhausted claims and return to federal court without facing a statute of limitations bar. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005); see also Jackson v. Roe, 425 F.3d 654, 659-61 (9th Cir. 2005). It is for this stated reason that petitioner now seeks a stay and abeyance in this federal habeas action. However, petitioner's concern that his federal habeas petition will be rendered untimely if he returns to state court to exhaust his claims is unfounded given the somewhat unique circumstances posed here. The following timeline makes this clear.
On June 30, 2006, petitioner was sentenced in the Sacrament County Superior Court for violating California Penal Code § 288. (Lodg. Doc. 1.) Petitioner filed a direct appeal in the California Court of Appeal for the Third District. The state appellate court affirmed the judgment of the trial court on July 8, 2008. (Lodg. Doc. 2.) Thereafter, petitioner filed a petition for review, which the California Supreme Court denied on October 16, 2008. (Lodg. Doc. 4.)
On July 22, 2009, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court. (Lodg. Doc. 5.) By order filed September 15, 2009, the Superior Court denied petitioner's application for habeas relief but sua sponte found the previously imposed sentence to be unlawful, vacated the entire sentence and set the matter for resentencing. (Lodg. Doc. 6.) Accordingly, petitioner was resentenced by the trial court on October 30, 2009. (Lodg. Doc. 7.) Thereafter, petitioner appealed from his resentencing and, as of the date of this order, that appeal is still pending before the California Court of Appeal for the Third District. (Lodg. Doc. 8.)
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the one-year statute of limitations period for filing a federal habeas corpus petition typically begins to run on "the date on which the judgment became final." 28 U.S.C. § 2244(d)(1)(A).*fn1 A judgment becomes final when a petitioner's "conviction and sentence become final by the conclusion of direct review or the expiration of the time for seeking such review." Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (emphasis in original). As indicated above, the trial court resentenced petitioner on October 30, 2009 and petitioner is now pursuing an appeal from his new sentence. Thus, his judgment of conviction is not yet final. Until petitioner's new judgment and sentence is rendered final "by conclusion of direct review or by the expiration of the time for seeking such review," AEDPA's one-year statute of limitations period will not begin to run. Id. See also United States v. LaFromboise, 427 F.3d 680, 683-84 (9th Cir. 2005) (holding that without a final sentence, the one-year statute of limitation period under § 2255 has not begun to run); Hess v. Ryan, 651 F. Supp.2d. 1004, 1021 (D. Az. 2009) ("[T]his court is bound to apply the rule adopted by the Ninth Circuit and expressed in Burton, that finality for limitations purposes is calculated from a resentencing judgment."); Cooper v. Harrington, No. Civ. S-09-3093 FCD DAD P, 2010 WL 1644508, at *3 (E.D. Cal. Apr. 21, 2010) ("Where, as here, the California Court of Appeal remands a case to the Superior Court to issue an amended judgment to reflect the appellate court's opinion, the petitioner's conviction become final for purposes of federal habeas review upon conclusion of direct review of the amended judgment or upon expiration of time for seeking such review.")
Because the statute of limitations period for the filing of a federal habeas petition has not even begun to run as of yet in petitioner's case, it would be imprudent to grant a stay and abeyance at this time. See Kilgore v. Malfi, No. C 07-340 SI (pr), 2007 WL 1471293, at *2 (N.D. Cal. May 17, 2007) (denying petitioner's motion for a stay and abeyance where ...