The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Most motions in capital cases are difficult; this one is not. Petitioner seeks a Rhines stay of the federal petition while he exhausts new claims, or at the very least, potentially significant new evidence related to already stated claims. No dispute exists with respect to the bona fides of acquisition of the new evidence, i.e., the "exoneration" evidence*fn1 was recently discovered by respondent who then forwarded it on to petitioner. A Rhinesstay should issue. Because legitimate reasons are present to exhaust the "exoneration" claims, there is no present \\\\\ impediment in seeking to exhaust any new claim petitioner desires to exhaust.*fn2
The undersigned therefore recommends that this federal petition be stayed pending resolution of the already filed exhaustion petition in state court.
Petitioner was not the first person charged with the 1990 murder of Sammy McCullogh, the murder at issue in this habeas petition. An unusual circumstance which relates to the new evidence at issue in this case was the initial charging and dismissal of petitioner's brother, Steven Horning, for the death of Mr. McCullogh.. Nevertheless, petitioner was thereafter charged with and convicted of the special circumstances murder of McCullogh, and was sentenced to death on January 26, 1995. Petitioner's conviction was affirmed by the California Supreme Court and the first round of state habeas proceedings was finished on May 12, 2010. Federal proceedings commenced on July 21, 2010 with petitioner's request for appointment of counsel.
Soon thereafter petitioner's appointed counsel requested that the undersigned toll the AEDPA limitations period due to, inter alia, a newly discovered letter written by yet another brother of petitioner, Jerry Horning. This letter, written in 1995, purported to blame the McCullogh murder on the initially charged Steven Horning. Jerry Horning explained that McCullogh owed a drug debt to Steven, and when it wasn't paid, Steven killed McCullogh. The letter was not discovered until early 2011 when petitioner's present counsel were investigating another murder committed by Steven. In the course of that investigation, a person with the Soledad Police Department notified respondent's counsel about the Jerry Horning letter; respondent's counsel timely notified petitioner's counsel of the letter.*fn3
Due to the need to investigate the letter, petitioner made a motion to toll the swiftly approaching AEDPA deadline for the filing of the petition in this case. That motion was granted. The undersigned found that, "[t]he letter could be related to ineffective assistance of counsel claims already adjudicated in state court, or new claims to be asserted, including a stand alone actual innocence claim." Findings and Recommendations, at 2-3 (March 21, 2011). Further:
The letter situation of this case is a different matter. Through no fault of their own, and while diligently investigating the case, a heretofore unknown letter was belatedly discovered. The letter, a facial assertion demonstrating actual innocence, is potentially very important to a fair adjudication of any petition, federal or state. Determining whether the letter can be a good faith focal point of a claim, or simply another disappointing (for petitioner) dead end, will take investigation.
Counsel performed their investigation, and filed a federal petition, with inclusion of the new evidence in respect to already stated claims, and an actual innocence claim.
Because the new stand alone innocence claim (Claim 49) and the other claims utilizing the new evidence would be deemed to be unexhausted, see Vasquez v. Hillary, 474 U.S. 257-58, 106 S.Ct. 67 (1986); Valdovinos v. McGrath, 598 F.3d 568, 573 (9th Cir. 2010), vacated on other grounds Horel v. Valdovinos, 131 S.Ct. 1042 (2011), ( new evidence which substantially changes the nature of the claim from when it was first stated in state court, requires ...