Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on his July 30, 2009 petition. Petitioner has filed a motion to stay the case pending his exhaustion of his state remedies. See Dckt. No. 3. Respondent moves to dismiss this action on the grounds that the petition is time-barred and that petitioner's claims are unexhausted. See Dckt. No. 13. For the reasons explained below, the court finds that the instant petition is a mixed petition, and accordingly, petitioner is ordered to file either supplemental briefing demonstrating good cause for failure to exhaust all of his claims, or an amended petition containing only exhausted claims. Petitioner is further ordered to file supplemental briefing addressing whether his petition is time-barred.
Petitioner was convicted of attempted murder and attempted carjacking.Lodg. Doc. 1. He was sentenced to thirty-two years to life in state prison. Id.
On October 30, 2007, the California Court of Appeal, Third Appellate District, affirmed the judgment. Lodg. Doc. 2. On February 19, 2008, the California Supreme Court denied review. Lodg. Doc. 4.
The instant petition was filed on July 30, 2009.
II. Exhaustion of State Remedies
Respondent claims that all of the claims in the instant petition are unexhausted and therefore that the petition must be dismissed. A district court may not grant a petition for a writ of habeas corpus unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1).
The court may stay a mixed petition, i.e., one containing exhausted and unexhausted claims, to allow a petitioner to present unexhausted claims to the state courts. Rhines v. Weber, 544 U.S. 269, 277 (2005). A court may not, however, stay a completely unexhausted petition. Jiminez v. Rice, 276 F.3d 476, 481 (9th Cir. 2001) (court must dismiss petition containing no exhausted claims). Stay and abeyance is appropriate when there was good cause for the petitioner's failure to exhaust his claims first in state court, his unexhausted claims are not plainly meritless, and there is no indication that he engaged in intentionally dilatory litigation tactics. Rhines, 544 U.S.at 277.
The instant petition contains the following claims: (1) ineffective assistance of appellate counsel;*fn1 (2) ineffective assistance of trial counsel: failure to investigate and failure to prove an adequate defense; (3) double jeopardy; (4) the trial court failed to instruct the jury regarding lesser included offenses in violation of petitioner's fourteenth and sixth amendment rights; and (5) prosecutorial misconduct.
Petitioner's double jeopardy claim was exhausted in his petition to the California Supreme Court. See Lodg. Doc. 3 at 18-26 (arguing that "the prosecution's use of inconsistent and irreconcilable theories at the two trials in this case compels reversal" and citing federal law). The instant petition challenges his conviction on the same grounds. See Pet. at 18-20.
Respondent argues that "[p]petitioner concedes that his federal claims are unexhausted . . . in response to question number thirteen of the form petition, Petitioner states 'These grounds were not previously raised due to ineffective assistance of appellate counsel.'" Dckt. No. 13 at 4. Similarly, petitioner states that the double jeopardy argument raised on direct appeal "was limited to an argument within a claim of petitioner being denied a fair trial and the due process of law" and that "appellate counsel was ineffective in failing to raise [his entire claim] on direct appeal." But pro se pleadings must be liberally construed. "A pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). It appears that petitioner mistakenly believes that because he claims that he received ineffective assistance of appellate counsel, he is excused from exhausting his claims. If petitioner understood that all of his claims needed to be exhausted before they could be heard in federal court, he would not have pled his case in this manner.
The court finds that the instant petition is mixed. Petitioner alleges that good cause exists for his failure to exhaust all of his claims because 1) some of his claims are newly discovered, and 2) he was sent to administrative segregation for five months, during which time he was denied all legal property, and 3) he suffered a broken hand which required surgery, making it extremely difficult and painful to write. Dckt. No. 3 at 7, 10. He also attests that he is not intending to delay the case and that he has been as diligent as possible. Id. at 10.
The court finds that this information is insufficient to determine whether good cause exists for petitioner's failure to exhaust. Specifically, petitioner should explain which of his claims are based on newly discovered evidence and why the evidence was not discovered sooner; why and when he was placed in administrative segregation and whether he had library access during this time period; when his hand was broken, when he had surgery, and how long he was prevented from writing because of his injury. Petitioner is cautioned that ignorance of the law and limited access to a law library are common among pro se prisoners and generally do not constitute good cause for failure to exhaust. Moreover, since the instant petition was filed in 2009, petitioner should advise the court whether his claims have now been exhausted.
Petitioner is therefore ordered to file supplemental briefing explaining why good cause exists to stay the case. Alternatively, petitioner may proceed by filing an amended petition containing only exhausted ...