The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER VACATING FINDINGS AND
RECOMMENDATIONS TO DISMISS THE
INITIAL PETITION (DOCS. 15, 1)
ORDER DENYING PETITIONER'S RENEWED MOTION FOR A RHINES STAY OF THE FIRST AMENDED PETITION (DOCS. 17, 16)
ORDER GRANTING PETITIONER THIRTY (30) DAYS FROM THE DATE OF SERVICE OF THIS ORDER TO WITHDRAW THE UNEXHAUSTED CLAIMS IN THE FIRST AMENDED PETITION (DOC. 16)
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303.
In the initial petition, Petitioner alleged that he was an inmate of the Centinela State Prison *fn1 serving a sentence of fifty-seven (57) years to life imposed on January 29, 2007, by the Stanislaus County Superior Court for convictions of attempted murder, brandishing a firearm at a peace officer, assault with a deadly weapon, and being a felon in possession of a firearm with gang enhancements. (Pet. 1.) Petitioner challenged his conviction and alleged four claims, including allegations that his trial counsel was ineffective, his appellate counsel was ineffective, Petitioner suffered a violation of his rights under the Miranda decision and the Fifth Amendment, and Petitioner suffered a violation of his right to due process of law guaranteed by the Sixth and Fourteenth Amendments as well as by the California Constitution by the use of an unduly suggestive pretrial identification procedure. (Doc. 1.)
However, the petition failed to allege that state judicial remedies had been exhausted as to these claims. Instead, Petitioner alleged that other issues had been presented on appeal and in a petition for review. In response to an order to show cause, Petitioner informed that Court that he had filed a petition in the California Supreme Court raising the claims he sought to raise in this Court; and Petitioner requested a stay, pending the state court's ruling, of the proceedings on the initial petition, which contained only claims as to which state court remedies had not been exhausted.
On December 13, 2011, the Magistrate Judge filed findings recommendations to dismiss the petition.
In response, Petitioner filed a first amended petition (FAP) in which he raised not only the same unexhausted claims raised in the initial petition, but two additional claims which were not raised in the initial petition but as to which state court remedies had already been exhausted: (1) insufficient evidence to support a gang enhancement, and (2) a violation of his right to due process and a fair trial by the trial court's denial of a defense motion to bifurcate proceedings on the gang enhancement from the remainder of the trial.
Simultaneously, Petitioner filed objections to the findings and recommendations in which he concurs that the Magistrate Judge's recommendation to dismiss the initial petition is legally correct, but seeks reconsideration of his motion for a stay in light of his having filed the FAP, which contains both exhausted and unexhausted claims. Petitioner alleges that if his petition is dismissed, he will be time barred. He further states that because his FAP contains both exhausted and unexhausted claims, he is entitled to a "Rhines" stay.
Petitioner asks this Court to take judicial notice of the docket in case number S198647 presently pending in the California Supreme Court. The docket reflects that on December 12, 2011, Petitioner filed a petition for writ of habeas corpus.
II. Vacating the Findings and Recommendations
Because Petitioner's filing of the FAP renders the findings and recommendations to dismiss the initial petition moot, the findings and recommendations ...