The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the Motion to Join Case of Co-Defendant and Motion to Re-Open filed by Petitioner Willard James Hall. (ECF No. 41).
On June 7, 2001, Petitioner and his co-defendant, Ronnie Jermaine Sherrors, were convicted of murder in California Superior Court. On September 28, 2001, the trial court sentenced Petitioner and Sherrors to life without the possibility of parole. On July 16, 2003, the appeals filed by Petitioner and Sherrors were denied by the California Court of Appeal. On October 1, 2003, their appeals were denied by the California Supreme Court.
On January 3, 2005, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court, challenging his June 7, 2001 conviction. (ECF No. 1). On March 15, 2005, Petitioner filed a First Amended Petition claiming that the state trial court committed constitutional error by: (1) improperly modifying California Jury Instruction ("CALJIC") No. 2.15; (2) improperly modifying CALJIC No. 8.81.17; and (3) presenting the jury with incomplete verdict forms. (ECF No. 5 at 6-9).
On June 15, 2005, Respondent filed a Motion to Dismiss the Petition on the grounds that Petitioner failed to exhaust his state remedies as to his second claim regarding CALJIC No. 8.81.17. (ECF No. 9). On August 11, 2005, Petitioner filed a Motion for Stay and Abeyance, moving the Court to stay his case so he could present his unexhausted second claim to the state courts. (ECF No. 15)
On September 16, 2005, the Magistrate Judge issued a Report and Recommendation recommending that this Court deny the Motion for Stay and Abeyance. (ECF No. 16). No objections were filed to the Report and Recommendation. On January 24, 2006, this Court adopted the Report and Recommendation in its entirety and informed Petitioner of his option to either "voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claims," or "formally abandon his unexhausted claim and proceed with his exhausted claims." (ECF No. 17 at 3-4). The Court stated: "If Petitioner chooses this second option, he must file a pleading entitled 'Formal Abandonment of Unexhausted Claim' with this Court no later than 30 days after the District Judge issues his decision." Id. at 4. The Court concluded that "Petitioner is presented with the options stated above to avoid dismissal of his petition." Id.
On February 28, 2006, Petitioner filed an "Application for Extension of Time to File Motion to Formally Abandon Unexhausted Claim," seeking a thirty day extension of time "in which to file a Motion to Formally Abandon Unexhausted Claim." (ECF No. 18 at 1). On March 27, 2006, the Magistrate Judge granted Petitioner's request for additional time and ordered that "Petitioner shall have until April 24, 2006 to file his 'Formal Abandonment of Unexhausted Claim.'" (ECF No. 19 at 3). Petitioner failed to file a formal abandonment of unexhausted claim or any other filing in response to the January 24, 2006 Court Order.
On May 19, 2006, this Court issued an Order finding that "Petitioner has filed a mixed Petition, has been given two options, but has failed to proceed under either option given by [the] Court" and ordering that "Petitioner's Petition for Habeas Corpus is dismissed without prejudice." (ECF No. 20 at 2-3). On May 21, 2006, Judgment was entered, dismissing the Petition without prejudice. (ECF No. 21).
On June 20, 2005, co-defendant Sherrors filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court, challenging his June 7, 2001 conviction. (Case No. 05cv1262, ECF No. 1). On May 24, 2007, the Magistrate Judge in that case issued a Report and Recommendation, recommending that this Court conditionally grant the petition on the grounds that the state trial court's use of CALJIC No. 2.15 constituted prejudicial constitutional error. (Case No. 05cv1262, ECF No. 45). On November 2, 2007, this Court, then Chief Judge Irma E. Gonzalez, presiding, adopted the Magistrate Judge's Report and Recommendation in full, "conditionally granting the writ unless the State decides to retry [Sherrors] within a reasonable time." (Case No. 05cv1262, ECF No. 56 at 12). On November 15, 2007, Respondent appealed the Court's November 2, 2007 Order to the Court of Appeals for the Ninth Circuit. (Case No. 05cv1262, ECF No. 58; Ninth Circuit Case No. 07-56756).
On May 18, 2009, Petitioner Hall filed a Motion to Join Case of Co-Defendant (ECF No. 26). This was the first filing by Petitioner since his request for a thirty-day extension of time on February 28, 2006 (ECF No. 18). Petitioner alleged that "his due process rights were violated by the [state trial court's] use of CALJIC 2.15" and moved the Court for "permission to join the case of his co-defendant, Ronnie Jermaine Sherrors" (ECF No. 26 at 1). Petitioner stated that "[P]petitioner's circumstances mirror that of Sherrors from arraignment until they split in federal habeas petitions.... Petitioner suffered the exact same damning testimony, the exact same sentence and their appeals throughout the state courts (laying the foundation for the federal claims) were and are exactly the same...." (ECF No. 26 at 17).
On October 9, 2009, the Court denied the Motion to Join Case of Co-Defendant "without prejudice to refile the motion once the Court of Appeals for the Ninth Circuit issues a final decision in Sherrors' habeas case." (ECF No. 33 at 6). The Court stated:
Petitioner's "Motion to Join Case of Co-Defendant" is based solely on the conditional grant of habeas relief to his co-defendant, Sherrors. This Court makes no ruling at this time as to whether the granting of conditional habeas relief to Sherrors constitutes "extraordinary circumstances" sufficient to warrant relief pursuant to Rule 60(b)(6). The Court finds that consideration of the matter is premature while Sherrors' habeas case remains on appeal.
Id. The Court ordered Respondent "to file in this action and serve on Petitioner a copy of any final decision issued by the Ninth Circuit in Sherrors' habeas case" and stated that "Petitioner may refile his motion to reopen this case no later than SIXTY (60) DAYS after he is served with a ...