The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding with retained counsel, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and paid the filing fee. Petitioner was tried by a jury and was convicted of two counts of continuous sexual abuse of his step-son and daughter in 2008 and sentenced to an aggregate state prison term of 24 years, twelve years on each count to be served consecutively. Petition, pp. 2, 18, 20. The pending petition sets forth the following grounds: 1) petitioner's "Sixth Amendment right to confrontation and his Fifth Amendment right to due process and a fair trial" were violated by "admission of evidence garnered from a foreign cyber investigation"; 2) "trial court committed prejudicial error," depriving petitioner "of his constitutional rights to an impartial jury and the effective assistance of counsel when it denied defense counsel's motion to rule on the admissibility of key evidence prior to voir dire." Petition, pp. 13, 36, 46.
Simultaneously, with the filing of the petition, on March 16, 2011, petitioner filed a motion for a stay and abeyance, pending exhaustion of two of the three claims raised by the petition, one claim having been previously exhausted. See Motion. Petitioner indicates in his motion that the unexhausted claims are already pending in state court, that is, prior to the filing of the instant petition. By order, filed on March 23, 2011, respondent was directed to file a response to the motion to stay. Respondent was granted an extension of time and filed an opposition. See docket # 10 and # 11.
Although petitioner characterizes the number of claims raised in the instant petition as three, with one previously exhausted on direct appeal (Motion, p. 1), it appears that respondent has more correctly noted that petitioner raises two grounds, the first of which has been exhausted; the second ground, which is unexhausted, containing two additional unexhausted claims. Opposition (Opp.), at 3. Petitioner frames the following as the claims presently being litigated in state court (numbered 1, 3 and 4, which further somewhat confused the issue, because they are three and not two claims):
1) A Fifth, Sixth and Fourteenth Amendment claim that the trial court denied Mr. Abel his right to a fair jury trial, and the effective assistance of trial counsel, in denying defense counsel's request to rule on the admissibility of key evidence prior to voir dire.
3) A Fifth, Sixth and Fourteenth Amendment claim alleging ineffective assistance of appellate counsel in failing to raise this issue on appeal;
4) A Fifth, Sixth and Fourteenth Amendment cumulative error claim.
As another basis for a stay, petitioner argues that the state collateral proceedings may be dispositive, rendering action in this court moot. Id.
Petitioner seeks a stay pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005). In Rhines, the United States Supreme Court found that a stay and abeyance of a mixed federal petition should be available only in the limited circumstance that good cause is shown for a failure to have first exhausted the claims in state court, that the claim or claims at issue potentially have merit and that there has been no indication that petitioner has been intentionally dilatory in pursuing the litigation. Rhines, supra, at 277-78, 125 S.Ct at 1535. Respondent does not argue that the current petition is untimely in this court and does not dispute that once petitioner's state court remedies on the pending claims are exhausted, the AEDPA statute of limitations would not expire for another thirteen days. Opp., p. 2. In addition, respondent expressly agrees that petitioner's failure to exhaust prior to filing the federal petition in no way appears to arise from any effort to delay proceedings and likewise agrees that the unexhausted claims are not plainly meritless. Id., at 4. Respondent solely raises an issue with respect to petitioner's showing regarding good cause, which the state maintains petitioner does not establish. Id.
While not defining the precise parameters of what constitutes good cause in the failure to exhaust context, the Ninth Circuit has held "that the application of an 'extraordinary circumstances' standard does not comport with the 'good cause' standard prescribed by Rhines." Jackson v. Roe, 425 F.3d 654, 661-662 (9th Cir. 2005). Citing Rhines, 544 U.S. at 278, 125 S.Ct. 1528');">125 S. Ct. 1528, the Supreme Court has suggested that "[a] petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute 'good cause' for him to file in federal court." Pace v. Digulielmo, 544 U.S. 408, 416, 125 S. Ct. 1807, 1813 (2005). The undersigned has previously stated:
[T]he criteria utilized in Pioneer Inv. Services v. Brunswick
Associates, 507 U.S. 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), in defining "excusable neglect" works well with the good cause referenced in Rhines. That is, the court will look to factors such as prejudice to the non-moving party, length of the delay and its effect on efficient court administration, whether the delay was caused by factors beyond the control of the movant, and good faith. Id. at 386, 396, 113 S.Ct. at 1493, 1498. The fact that counsel was even negligent does not per se disqualify counsel from a finding of excusable neglect. Id. at 394-395, 113 S.Ct. at 1498. ...