The opinion of the court was delivered by: Barbara Jacobs Rothstein U.S. District Court Judge
ORDER REGARDING MOTION TO STAY MIXED PETITION AND HOLD IN ABEYANCE
Petitioner Morris Harmon is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. On April 16, 2010, this court found certain of Mr. Harmon's claims to be unexhausted, and appointed counsel to assist Mr. Harmon in deciding how to proceed. On August 31, 2010, Mr. Harmon filed a motion requesting that the court stay and hold in abeyance his habeas petition in accordance with Rhine v. Weber, 544 U.S. 269 (2005) or, in the alternative, Kelly v. Small, 315 F.3d 1063 (9th Cir.), cert. denied, 123 S.Ct. 2094 (2003). The State opposed the motion. Having reviewed the motion, opposition and the supplemental briefing, the court hereby finds and rules as follows.
A. Stay and Abeyance of a Mixed Petition under Rhines and Kelly
A state prisoner is required to exhaust all available state court remedies before a federal court may grant habeas relief. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires that the prisoner give the state courts a "fair opportunity to act" on each of his claims before he presents those claims in a federal habeas petition. Id. at 844. In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court held that a "mixed" federal habeas petition-one that presents some exhausted and some unexhausted state claims-must be dismissed without prejudice. Id. at 520-22. This total exhaustion requirement presented significant difficulties once Congress enacted AEDPA in 1996, imposing a one-year statute of limitations on the filing of habeas petitions in federal court. 28 U.S.C. § 2244(d). The AEDPA statute of limitations is tolled while a prisoner seeks collateral review in a state court, but not while the prisoner is in federal court. 28 U.S.C. §2244(d)(2).
The Supreme Court has recognized that the interplay between Lundy and AEDPA means that "petitioners who come to federal court with 'mixed' petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims." Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) quoting Rhines, 544 U.S. at 275. In other words, if a prisoner files a timely, mixed petition and the district court makes a Lundy ruling after the one-year limitations period has run, the prisoner is precluded from filing a new federal habeas petition after exhausting those unexhausted claims. Robbins, 481 F.3d at 1147.
In response to this conundrum, the Ninth Circuit in Calderon v. United States District Court ("Taylor"), approved a three-step procedure commonly referred to as the "Kelly procedure." 134 F.3d 981, 986 (9th Cir. 1998); Robbins, 481 F.3d at 1148-49. Pursuant to the Kelly procedure, (1) a petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition. Kelly, 315 F.3d at 1071. The Ninth Circuit has held that the Kelly procedure is "particularly appropriate when an outright dismissal will render it unlikely or impossible for the petitioner to return to federal court within the one-year limitations period." Kelly, 315 F.3d at 1070.
Thereafter, in Rhines v. Weber, the Supreme Court addressed the propriety of staying a mixed petition while a petitioner exhausts his unexhausted claims in state court. 544 U.S. at 271. The Court held that in limited circumstances and upon the court's discretion, a petitioner can have his entire petition stayed and placed in abeyance while he exhausts the unexhausted claims in state court. Id. at 273-74; King v. Ryan, 564 F.3d 1133 at 1135-36 (9th Cir. 2009). The Rhines procedure is only available if: (1) the petitioner has "good cause" for his failure to exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics." Rhines, 544 U.S. at 278.
There are two distinct differences between Rhines and Kelly. First, Rhines stays and holds in abeyance both the exhausted and unexhausted claims where Kelly requires the petitioner to delete the unexhausted claims and only stays and holds in abeyance the fully exhausted petition. This is an important distinction because under Kelly a petitioner would still have to re-attach his deleted claims within the AEDPA statute of limitations. King, 564 F.3d at 1138-39. Under Rhines, however, the petitioner does not have to worry about the statute of limitations because his unexhausted claims would not have left federal court. Id. at 1139 citing Rhines, 544 U.S. at 277.
The second difference between the two procedures is that Rhines requires a showing of good cause, while Kelly does not. King, 564 F.3d at 1140. This is because Rhines carved out an exception to the Lundy total exhaustion rule, allowing a mixed petition to remain pending in federal court under limited circumstances. Id. In contrast, the Kelly procedure, because it does not leave a mixed petition pending, does not sanction any exception to Lundy and so does not present the same dangers of abuse. Id.
B. Good Cause Does Not Exist for Petitioner's Failure to Exhaust Claims
Mr. Harmon contends that his defense counsel provided ineffective assistance by failing to raise a confrontation clause challenge to the DNA evidence presented at trial. The State concedes that this claim has been exhausted. However, in the Memorandum of Points and Facts attached to the Petition, Mr. Harmon raises several additional grounds as to why his defense counsel was ineffective, alleging among other things, that his attorney cross-dressed during trial, discussed Mr. Harmon's religious affiliation in front of the jury, made sexual advances toward him, and had inappropriate contact with members of the jury and the victim's mother. These additional claims have never been presented to the California courts and are thus unexhausted.
Mr. Harmon also asserts that his constitutional rights were violated by the trial court's denial of his motion to suppress DNA evidence presented at trial. The State concedes that this claim has been exhausted in state court. However, Mr. Harmon now asserts for the first time that the DNA evidence should have been excluded because the State's DNA expert, Sacramento County District Attorney Crime Laboratory criminalist Mark Eastman, has since been fired by the County for mishandling DNA evidence. Mr. Harmon claims that sometime in 2006 he heard a news report on KCDA Channel Three News that Mr. Eastman was fired ...