The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER NOTING THAT THE FIRST AMENDED PETITION (DOC. 18) WAS TIMELY FILED ORDER REQUIRING PETITIONER TO SUBMIT WITHIN THIRTY (30) DAYS A SIGNED DECLARATION CONCERNING THE FIRST AMENDED PETITION ORDER GRANTING PETITIONER'S MOTION FOR STAY AND ABEYANCE (DOC. 19) ORDER DIRECTING PETITIONER TO FILE STATUS REPORTS EVERY THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting their consent in writings signed by the parties or their representatives and filed by Petitioner on August 24, 2009, and on behalf of Respondent on August 18, 2009. Pending before the Court is Petitioner's motion for a stay of the proceedings in order to permit him to exhaust unexhausted claims in the courts of the state of California, filed on April 19, 2010. Respondent filed a response on May 11, 2010. No reply has been filed.
The original petition, which challenges a conviction suffered in the Superior Court of the County of Kern, State of California, was filed in the Central District of California on May 19, 2009, and was transferred to this Court on June 9, 2009.
Petitioner filed a motion to stay the proceedings in July 2009, and Respondent opposed the motion. On March 5, 2010, the Court denied Petitioner's motion for a stay because with respect to two (2) out of the five (5) claims or grounds set forth in the petition, Petitioner admitted that he had not exhausted state court remedies. (Order 2, doc. 16.) Three (3) claims had been exhausted: 1) trial counsel was ineffective in failing to object timely or move to exclude Petitioner's out-of-court statement in violation of Petitioner's Fifth and Fourteenth Amendment rights to remain silent; 2) the prosecutor's misstating the reasonable doubt standard and vouching for the sole prosecution witness violated Petitioner's right to due process of law and constituted a denial of the right to the effective assistance of counsel; and 3) cumulative prejudice violated Petitioner's right to due process of law. (Id. 1.)
The Court expressly concluded that because Petitioner had not demonstrated good cause why he had not exhausted claims four (4) and five (5) (improper use of a prison prior and ineffective assistance of appellate counsel), it would not grant a discretionary stay of all claims that may be ordered upon a showing of good cause for having failed to exhaust state court remedies pursuant to Rhines v. Webber, 544 U.S. 269, 277 (2005). However, the Court found it appropriate for Petitioner to proceed pursuant to the "Kelly" procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), pursuant to which 1) the petitioner amends his mixed petition to delete any unexhausted claims; 2) the Court stays and holds in abeyance the amended, fully exhausted petition and allows the petitioner an opportunity to proceed to state court to exhaust the deleted claims; and 3) the petitioner later amends the petition and re-attaches the newly exhausted claims to the original petition. See, King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). Accordingly, the Court granted Petitioner leave to amend his petition for writ of habeas corpus and to file a motion to stay the amended petition within twenty (20) days. (Doc. 16, 3.) II. Timeliness of the Amended Petition Petitioner filed the first amended petition for writ of habeas corpus, along with his request for a stay, on April 19, 2010. As Respondent acknowledges (Resp. 1-2) and review of the first amended petition (FAP) shows, Petitioner raised only the three (3) exhausted claims in the petition. However, Respondent notes that the FAP was filed on April 19, about twenty (20) days after the running of the thirty-day period set by the Court for filing the amended pleading and requesting a stay. (Id. 2.) Respondent does not assert that the FAP was untimely.
As Respondent states, the proof of service filed by Petitioner reflects that Petitioner deposited the FAP in the mail on March 24, 2010. (Doc. 18 at 34.) The Court understands Petitioner's declaration concerning deposit with the mails to reflect the date upon which Petitioner deposited the petition with the prison authorities. The Court generally affords a habeas petitioner application of the mailbox rule as to all his habeas filings in state court and in this federal court. Houston v. Lack, 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities); Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (mailbox rule applies to pro se prisoner who delivers habeas petition to prison officials for the Court within limitations period). Affording Petitioner the benefit of the mailbox rule, the Court concludes that the FAP, which was due to be filed on March 29, 2010, was timely filed when delivered to authorities on March 24, 2010.
III. Order to Petitioner to Submit a Signed Declaration under Penalty of Perjury
A review of the FAP shows that Petitioner did not sign the first amended petition.
Local Rule 131 requires a document submitted to the Court for filing to include an original signature. In addition, Rule 2 of the Rules Governing Section 2254 Cases (Habeas Rules) requires a petition for writ of habeas corpus to "be signed under penalty of perjury by the petitioner."
In light of the difficulty in having Petitioner submit a new habeas corpus petition, Petitioner is ORDERED to submit a document stating that he submitted the first amended petition to the Court and to sign it under penalty of perjury. The document should contain an original signature. Petitioner is GRANTED thirty (30) from the date of service of this order to comply with the Court's directive.
Petitioner is forewarned that failure to comply with a Court order will result in dismissal of the petition pursuant to Local Rule 110.
IV. Petitioner's Motion for Stay
The Court notes that Respondent has responded to Petitioner's motion for stay filed on April 19, 2010. Respondent notes that the Kelly procedure often involves greater difficulty and risk in ultimately demonstrating the timeliness of later-included, unexhausted claims because the pendency of a federal habeas petition does not toll the ...