The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 4) ORDER DENYING PETITIONER'S MOTION TO STAY THE PETITION PURSUANT TO SEC. OF THE RHINES v. WEBER (Doc. 8) CDCR, 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CLAIMS AND SEEK A KELLY STAY INFORMATIONAL ORDER TO PETITIONER CONCERNING DISMISSAL IF UNEXHAUSTED CLAIMS ARE NOT WITHDRAWN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 February 1, 2012 (doc. 6). Pending before the Court are Petitioner's response to the Court's order to show cause, and Petitioner's motion for a stay and abeyance of the proceedings, which were filed on February 6, 2012.
I. Screening the Petition
The pending order and application arise out of the Court's initial screening of the petition, which was filed on January 20, 2012.
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).
The Court may dismiss a petition for writ of habeas corpus either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9 th Cir. 1971).
In the petition, Petitioner alleges that he is an inmate of the Ironwood State Prison (ISP) located at Blythe, California, serving a sentence of forty (40) years to life imposed in 2008 by the Superior Court of the State of California for the County of Tulare for second degree murder with gun and gang enhancements in violation of Cal. Pen. Code §§ 187, 12022.53, and 186.22. (Pet. 1.)
Petitioner alleges the following claims in the petition: 1) the trial court erred in allowing previously adjudicated gun and gang enhancements to be retried and thereby violated Petitioner's protection against double jeopardy under the state constitution and the Fifth Amendment of the Federal Constitution as well as his rights to a fair trial and due process of law; 2) the trial court erred in failing to discharge juror number three for juror misconduct and bias and thereby violated Petitioner's right to trial by an impartial jury under the Sixth and Fourteenth Amendments and denied Petitioner's rights to a fair trial and due process of law; 3) the trial court erred in failing to discharge juror number nine for juror misconduct and bias and thereby violated Petitioner's right to trial by an impartial jury guaranteed by the Sixth and Fourteenth Amendments and denied Petitioner's rights to a fair trial and due process of law; 4) the evidence at trial was insufficient to support a finding that Petitioner committed the crime with the specific intent to further criminal activity of gang members, which resulted in a violation of Petitioner's right to due process of law and denial of his right to a fair trial; 5) the misconduct of juror number three in concealing her bias during voir dire and in violating the trial court's separation admonition violated Petitioner's rights to trial by an impartial jury guaranteed by the Sixth and Fourteenth Amendments, to a fair trial, and to due process of law; 6) the misconduct of juror number nine in concealing her bias during voir dire violated Petitioner's right to an impartial jury guaranteed by the Sixth Amendment; 7) Petitioner was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments and due process of law when counsel failed to challenge for cause, or procure the discharge of, juror number three; 8) Petitioner was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments when counsel failed to investigate and challenge juror number four for cause based on the juror's inability to render an impartial verdict; 9) Petitioner was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments when counsel failed to investigate the impartiality of juror number nine, challenge the juror for cause, or procure the juror's discharge; and 10) the cumulative impact of the trial court's errors with respect to retrial of the enhancements, insufficiency of the evidence, and the failure to dismiss jurors three and nine, combined with the previously described juror misconduct and ineffective assistance of counsel, prejudiced Petitioner's right to a fair trial and due process. (Pet. 4-5, 14-28.)
With respect to exhaustion of his claims, Petitioner alleges that he raised issues concerning double jeopardy, jury misconduct, and insufficiency of the evidence on direct appeal and on review by the California Supreme Court. (Id. at 2.) He further alleges that with respect to double jeopardy, jury misconduct, insufficiency of the evidence, prosecutorial misconduct, and the ineffective assistance of counsel, he filed a petition for writ of habeas corpus in the trial court, which was denied in October 2011. (Id. at 3.) He filed a petition concerning jury misconduct, prosecutorial misconduct, and ineffective assistance of counsel in the Court of Appeal of the State of California, Fifth Appellate District, which is currently pending.
Accordingly, even if Petitioner's allegations are liberally construed, he has failed to present his claims concerning cumulative error and ineffective assistance of counsel to the California Supreme Court. Further, although the allegations are unclear, it is possible that he has not presented the issues concerning trial court error involving jury misconduct to the California Supreme Court. Thus, Petitioner has filed a "mixed" petition in which Petitioner seeks to raise both exhausted and unexhausted claims.
In an order filed on January 26, 2012, the Court informed Petitioner concerning the legal requirement of exhaustion of state court remedies as to all his claims and ordered Petitioner to show cause within thirty days why the petition should not be dismissed for Petitioner's failure to exhaust all claims. Petitioner was directed to inform the Court whether or not his claims concerning the ineffective assistance of counsel, cumulative error, and trial court error involving jury misconduct have been presented to the California Supreme Court, and if possible, provide the Court with a copy of the petition filed in the California Supreme Court, along with a copy of any ruling made by the California Supreme Court.
On February 6, 2012, Petitioner filed a motion for stay and abeyance of the petition acknowledging the Court's order to show cause, noting the Court's general authority to stay proceedings on petitions pursuant to Rhines v. Weber, 544 U.S. 269 (2005) or to dismiss the petition without prejudice to permit a petitioner to exhaust unexhausted claims, and requesting that the Court stay the petition so that he could exhaust his claims.
In his response to the order to show cause, Petitioner did not provide any information concerning exhaustion of any of the specific claims ...