The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION; ORDER REQUIRING FILING OF VERDICT FORM AND TRANSCRIPT; AND ORDER REQUIRING PETITIONER TO DISMISS UNEXHAUSTED CLAIMS OR FACE DISMISSAL OF HIS PETITION
Petitioner, a prisoner in state custody, filed a petition seeking habeas relief. Respondent moved to dismiss the petition pursuant to Rose v. Lundy, 455 U.S. 509, 510 (1982) because it presented both exhausted and unexhausted claims. Petitioner filed an opposition, requesting that the petition be stayed while he exhausts the two unexhausted claims. These matters were referred to Magistrate Judge William McCurine for a report and recommendation. On June 9, Judge McCurine issued his report and recommendation (the "R&R"), recommending that a stay be denied because Petitioner had not shown good cause and recommending that Petitioner be required either to dismiss his petition or to delete the two unexhausted claims. After seeking and obtaining an extension of time in which to object to the R&R, Petitioner filed his objections on July 23.
Petitioner agrees with the R&R's recitation of the facts and procedural history, and agrees his third and fourth claims (for ineffective assistance of trial counsel and appellate counsel, respectively) were unexhausted. He only disagrees on the issue of good cause. Petitioner also asks that if his petition is not stayed, he later be permitted to amend it as discussed in Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2003).
After Petitioner's conviction became final, he pursued one round of appeal in California's courts. He filed no habeas petitions in state court.
A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The Court thus reviews de novo those portions of the R&R to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
Under Rhines v. Weber, 544 U.S. 269 (2005), the Court has discretion to stay a mixed habeas petition to allow the petitioner to present his unexhausted claims to the state court and then return to federal court for review of his petition. The petitioner must, however, show good cause for failure to exhaust, and the claims must not be "plainly meritless." Id. at 277. Petitioner bears the burden of showing good cause. Id. at 278.
The Kelly procedure remains available even after Rhines. King v. Ryan, 564 F.3d 1133, 1136 (9th Cir. 2009). Kelly does not require a showing of good cause for failure to exhaust, but is more cumbersome for the petitioner. Id. Under Kelly, a petitioner does not have to show good cause for failure to exhaust, but is required to delete unexhausted claims. The petition, containing only exhausted claims, then remains pending in federal court while the petitioner exhausts his state claims. But to be considered timely, a habeas petitioner's new claims must relate back to properly exhausted claims pending in a federal petition, not to an earlier version of the petition. Id. at 1141. Simply arising from the same trial or conviction is not sufficient; the claims must share the same core of operative facts. Id. Kelly does nothing to protect the unexhausted claims from becoming untimely in the interim. Id.
Petitioner's unexhausted claims are for ineffective assistance of counsel. A petitioner claiming ineffective assistance of counsel must demonstrate that the defense attorney's representation fell below an objective standard of reasonableness, Strickland v. Washington, 466 U.S. 668, 688 (1984), and that the attorney's deficient performance prejudiced him. Id. at 693--94. Judicial scrutiny of counsel's performance is "highly deferential" and there is a strong presumption that counsel's performance falls within the "wide range of professional assistance." Id. at 689. "The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citation omitted). The petitioner bears the burden of showing that, but for his counsel's unprofessional errors, there is a reasonable probability the result would have been different. Strickland, 466 U.S. at 689 (citation omitted); accord Porter v. McCollum, 130 S.Ct. 447, 455 (2009) (explaining that habeas petitioner bears the burden of showing he was prejudiced by his counsel's deficiency).
The Strickland standard does not require counsel to preserve all issues that might conceivably be meritorious, nor does it allow the Court to deem such issues preserved simply because some competent counsel might have raised them. Such an argument was raised and rejected in Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). There, a habeas petitioner argued his trial counsel should have moved to suppress certain evidence, claiming such motions would have succeeded. The appellate court noted that, if it were certain the evidence would have been suppressed, the trial counsel's performance would have been deficient. But because trial counsel had no reason at the time to know the motion would be granted, his performance was not deficient, even if later rulings showed the motions might have succeeded. The court noted that counsel are not required to file every potentially meritorious motion on the theory that a defendant has everything to gain and nothing to lose. Rather, the court discussed in detail several very sound reasons why an attorney might not file such motions.
II. Petitioner's Unexhausted Claims
The jury convicted Petitioner of a violation of one count of aiding and abetting second degree murder, and one count of making a criminal threat. The jury also found that the murder was committed with a firearm, that Petitioner used a firearm while making the criminal threat, and ...