The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 6) ORDER DENYING PETITIONER'S MOTION ) TO STAY THE PETITION PURSUANT TO (Doc. 9)
ORDER GRANTING PETITIONER THIRTY ) (30) DAYS FROM THE DATE OF
) SERVICE OF THIS ORDER TO WITHDRAW PETITIONER'S UNEXHAUSTED CLAIMS
AND SEEK A KELLY STAY (Doc. 9) INFORMATIONAL ORDER TO PETITIONER
CONCERNING DISMISSAL IF UNEXHAUSTED CLAIMS ARE NOT WITHDRAWN
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has 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 consent in a signed writing filed by Petitioner on June 17, 2011 (doc. 5). Pending before the Court is Petitioner's motion for a stay and abeyance of the action to permit exhaustion of claims in state court, or, in the alternative, for leave to amend the petition to withdraw unexhausted claims, which was filed on July 19, 2011.
I. Discharge of the Order to Show Cause On July 19, 2011, Petitioner filed a timely response to the Court's order to show cause that issued on June 20, 2011.
Accordingly, the order to show cause will be discharged.
II. Motion for Stay and Abeyance
Preliminarily, the Court notes Petitioner's references to the jurisdiction of this Court to proceed to consider his claims in the absence of objection by Respondent. (Mot., doc. 9, 3.) However, Petitioner does not suggest that the Court proceed to consider the unexhausted claims. The Court reiterates its screening obligation, initially described in the order to show cause. (Doc. 6, 1-2.)
Petitioner concedes that as to the following two claims, state court remedies are unexhausted: 1) a concurrent prison term imposed on count 4, possession of a deadly and dangerous weapon by an inmate in violation of Cal. Pen. Code § 4502(a), must be stayed because the evidence failed to demonstrate that Petitioner possessed a sharp instrument at any time other than when he assaulted and battered correctional officers; and 2) the trial court abused it discretion by imposing a consecutive sentence on count 6, aggravated assault while serving a life sentence in violation of Cal. Pen. Code § 4500, instead of imposing a concurrent term. (Mot., 3.)
Petitioner thus seeks a stay of the action in order to exhaust state court remedies as to the two unexhausted claims, or, in the alternative, leave to file an amended petition from which the unexhausted claims have been deleted, pursue state court remedies, and amend the petition again once the claims have been exhausted. Petitioner declares under penalty of perjury that the two unexhausted claims were not raised by his appellate counsel; Petitioner was unaware of counsel's failure to present the claims or of the claims themselves because of ignorance of the rules of criminal practice, but he seeks to avoid forfeiture of the claims that might result from the operation of the statute of limitations. (Mot. 3, 6.)
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).
A district court has discretion to stay a petition which it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276 (2005); King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir. 2009). A petition may be stayed either under Rhines, or under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). King v. Ryan, 564 F.3d 1133, 1138-41 (9th Cir. 2009).
Under Rhines, the Court has discretion to stay proceedings; however, this discretion is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Rhines, 544 U.S. at 276-77. In light of AEDPA's objectives, "stay and abeyance [is] available only in limited circumstances" and "is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 277-78. A stay of a mixed petition pursuant to Rhines is required only 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. Id.
A petition may also be stayed pursuant to the procedure set forth by the Ninth Circuit in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Under this three-step procedure: 1) the petitioner files an amended petition deleting the unexhausted claims; 2) the district court stays and holds in abeyance the fully exhausted petition; and 3) the petitioner later amends the petition to include the newly exhausted claims. See, King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). However, the amendment is only allowed if the additional claims are timely. Id. at 1140-41.
The Supreme Court has not articulated what constitutes good cause under Rhines, but has stated that "[a] petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute 'good cause' for him to file" a "protective" petition in federal court. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). The Ninth Circuit has held that the standard is less stringent than that for good cause to establish equitable tolling, which requires that extraordinary circumstances beyond a petitioner's control be the proximate cause of any delay. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). The Ninth Circuit has recognized, however, that "a stay-and-abeyance should be available only in limited circumstances." Id. at 661 (internal quotation marks omitted); see, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008), cert. denied, --- U.S. ----, 129 S.Ct. 2771, 174 L.Ed.2d 276 (2009) (concluding that a petitioner's impression that counsel had exhausted a claim did not demonstrate good cause). The principles of Rhines must be applied ...