Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a motion for a stay and abeyance. In accordance with the court's February 8, 2011 order, petitioner has filed an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
On December 15, 2010, petitioner filed a petition for writ of habeas corpus, challenging a judgment of conviction originally entered against him in 2007 by the Shasta County Superior Court. Petitioner asserts four grounds for relief in his petition: (1) the trial court erred in denying him the right to present evidence at sentencing, (2) his sentence of seventy-eight years to life in state prison constitutes cruel and unusual punishment, (3) the trial court abused its discretion when it refused to strike one of his prior convictions at the time of sentencing, and (4) the trial court abused its discretion when it imposed consecutive sentences. (Pet. at 5-6.)
Petitioner also filed a motion for a stay and abeyance. Therein, he contends that he would like to stay this action to pursue four additional claims for habeas relief in state court regarding: (1) the illegal use of a prior conviction, (2) the testimony of a star witness, (3) the imposition of a restitution fine, and (4) the ineffective assistance of counsel. Petitioner acknowledges that the California Supreme Court denied his petition for review on September 23, 2009, so that the one-year statute of limitations for the filing of a federal habeas petition began running ninety days thereafter on December 22, 2009, and expired one year later on December 21, 2010. (Mot. for Stay & Abey. at 3.)
STAY AND ABEYANCE PROCEDURES
The United States Court of Appeals for the Ninth Circuit has analyzed the two procedures available to habeas petitioners who wish to proceed with exhausted and unexhausted claims for relief. See King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). First, the Ninth Circuit explained "the Kelly procedure," which it had outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Under the three-step Kelly procedure,
(1) the petitioner amends his petition to delete any unexhausted claims, (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted claims, and (3) petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition.
King, 564 F.3d at 1135. A petitioner who elects to proceed under the Kelly procedure will be able to amend his petition with his newly exhausted claims if they are timely. If a petitioner's newly-exhausted claims are untimely, he will only be able to amend his petition to include them if they share a "common core of operative facts" with the claims in his original petition. In this regard, the Kelly procedure, unlike the alternative procedure discussed below, is a riskier one for a habeas petitioner because it does not protect a petitioner's unexhausted claims from expiring during a stay. See King, 564 F.3d at 1140-41. See also Duncan v. Walker, 533 U.S. 167, 172-75 (2001) (unlike the filing of a state habeas petition, the filing of a federal habeas petition does not toll the statute of limitations).
As the Ninth Circuit explained in King, the United States Supreme Court has authorized an alternative procedure which it outlined in Rhines v. Weber, 544 U.S. 269, 277 (2005). Under the Rhines procedure, the petitioner need not amend his petition to delete unexhausted claims. Instead, the petitioner may proceed on a "mixed petition," and his unexhausted claims remain pending in federal court while he returns to state court to exhaust them. See King, 564 F.3d at 1140; Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) ("Rhines concluded that a district court has discretion to stay a mixed petition to allow a petitioner time to return to state court to present unexhausted claims."). A petitioner who elects to proceed under the Rhines procedure can, in many instances, avoid an issue with respect to the timeliness of his petition. See King, 564 F.3d at 1140. However, the Supreme Court cautioned that a "stay and abeyance [under the Rhines procedure] should be available only in limited circumstances," and "district courts should place reasonable time limits on a petitioner's trip to state court and back." Rhines, 544 U.S. at 277-78. The Supreme Court explained that district courts should not grant a stay if the petitioner has engaged in abusive litigation tactics or intentional delay or if the unexhausted claims are plainly meritless. Id. at 278. In addition, federal proceedings may not be stayed indefinitely and reasonable time limits must be imposed on a petitioner's return to state court to exhaust additional claims. Id. at 277-78.
Petitioner's motion does not sufficiently establish that the court should exercise its discretion to stay this action to allow petitioner to pursue his unexhausted claims in state court. Accordingly, the court will deny the pending motion without prejudice to the filing of a renewed motion. As an initial matter, in any renewed motion for a stay and abeyance, petitioner must clarify whether he is seeking a stay pursuant to the Kelly procedure or the Rhines procedure. If petitioner wishes to proceed under Kelly procedure, he should state so clearly in any renewed motion he elects to file. On the other hand, if petitioner wishes to proceed under the Rhines procedure, he must provide the court with sufficient facts and information to satisfy the Rhines requirements described above. Specifically, petitioner must show good cause for his failure to exhaust all claims before filing this action, demonstrate why each of his unexhausted claims is potentially meritorious, describe the status of any state court proceedings on the unexhausted claims, and demonstrate that he has acted diligently in pursuing his unexhausted claims. See Taylor, 134 F.3d at 987 n. 8 & n. 11 (failure to show diligence in pursuing claims may foreclose the granting of a stay).
In addition, if petitioner elects to file a renewed motion for a stay and abeyance, he must explain how any newly-exhausted claims would be timely filed in this action. As petitioner acknowledges in his motion, the statute of limitations for filing a federal habeas petition began running on December 22, 2009, ninety days after the California Supreme Court denied review, and expired one year later on December 21, 2010. See Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007); Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Under the mailbox rule, petitioner appears to have timely filed his currently-pending federal petition on December 15, 2010. However, the applicable statute of limitations has since expired, and petitioner's original petition contains only exhausted claims. If this court were to grant petitioner a stay under the Kelly or the Rhines procedure, he would need to file an amended petition at some point to include the claims he now seeks to exhaust in state court.
An application for a writ of habeas corpus "may be amended or supplemented as provided in the rules of civil procedure applicable to civil actions." 28 U.S.C. § 2242. See also Rule 11, Fed. R. Governing § 2254 Cases (providing that the Federal Rules of Civil Procedure may be applied in habeas corpus proceedings to the extent that the rules of civil procedure are not inconsistent with any statutory provision or with the rules governing habeas cases); Fed. ...