The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISCHARGING ORDERS TO SHOW CAUSE (DOCS. 5, 7)
ORDER DENYING REQUEST FOR A STAY ) PURSUANT TO RHINES V. WEBER (DOC. 19)
ORDER GRANTING PETITIONER'S
MOTION TO AMEND THE PETITION TO
WITHDRAW UNEXHAUSTED CLAIMS
ORDER GRANTING PETITIONER'S MOTION FOR A KELLY STAY (DOC. 19)
ORDER DIRECTING PETITIONER TO FILE STATUS REPORTS EVERY THIRTY (30) DAYS
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 August 12, 2011 (doc. 13). Pending before the Court is Petitioner's request to withdraw unexhausted claims, filed on December 6, 2011.
I. Discharging the Orders to Show Cause
Petitioner has responded to the Court's orders to show cause regarding dismissal for failure to exhaust state court remedies and for failure to comply with an order of the Court. As a result, the orders to show cause that issued on March 28, 2011, and May 17, 2011, will be discharged.
Petitioner alleged that he was an inmate of the California State Prison at Lancaster, California, serving a sentence of seventeen (17) years to life imposed in the Kern County Superior Court upon Petitioner's conviction after jury trial of having violated Cal. Pen. Code §§ 459, 288(A)(c)(2), 273, and 273.6(A). (Pet. 1.) Petitioner raises the following claims concerning the proceedings in the trial court: 1) erroneous or incomplete instructions concerning consideration of prior acts of misconduct violated Petitioner's right to due process of law under the Fourteenth Amendment (pet 9, 18-26); 2) the evidence of Petitioner's intent to commit oral copulation at the time of entry of the structure was insufficient to support a conviction of burglary, and thus Petitioner's right to due process of law under the Fourteenth Amendment was violated (id. at 27-31); 3) entry of the livingroom from the bedroom of a single family residence with the intent to commit forcible oral copulation was not sufficient to support a conviction of burglary in violation of Cal. Pen. Code § 459 (id. at 31-38); and 4) trial counsel's sleeping through an unspecified portion or portions of the proceedings violated Petitioner's right to the effective assistance of counsel.
Although Petitioner alleged that he had exhausted state court remedies as to the first three claims, Petitioner has not exhausted his state court remedies as to the fourth claim concerning counsel's sleeping.
On August 19, 2011, the Court denied without prejudice a motion for a stay of the proceedings for purposes of exhaustion that Petitioner had denominated a motion for an extension of time. The basis of the denial was a lack of information. Petitioner was informed that the denial was without prejudice to seeking a stay concerning specified claims. On November 22, 2011, the Court issued an order concluding that Petitioner had not exhausted his state court remedies as to his fourth claim concerning the ineffective assistance of counsel. The Court informed Petitioner of the pertinent law regarding exhaustion of state court remedies. The Court further informed Petitioner that the Court could not consider his "mixed" petition (i.e., a petition containing both exhausted and unexhausted claims), and Petitioner was directed to withdraw the unexhausted claim and proceed with the unexhausted claims, or have the petition dismissed without prejudice as a mixed petition. (Doc. 18, 6-10.)
III. Motion to Withdraw Unexhausted Claims
On December 6, 2011, Petitioner filed a document stating he had filed a petition for writ of habeas corpus in the California Supreme Court, and he further represented that he was ignorant of the law, found law library staff to be unavailable, had been in the hospital for a few weeks, and did not find it that easy to file paperwork on time. Petitioner stated the following:
Anyhow, I don't understand anything but there's any way if I first get the opinion from the Supreme Court and the decision.
If not then I would like to file a motion to withdraw the unexhausted claim concerning the ineffective assistance of trial counsel. (Doc. 19, 2-3.) The Court interprets this language to mean that Petitioner would prefer to have the proceedings stayed until the California Supreme Court acts on a petition he states he has filed there.
A. Request for a Stay of the Proceedings Petitioner's statement of preference for a stay and his articulation of the circumstances concerning his filing of paperwork can be construed as a motion for a stay based on a showing of good cause pursuant to Rhines v. Weber, 544 U.S. 269 (2005).
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; 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 ...