The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition pursuant to 28 U.S.C. § 2254. Petitioner was convicted of possession of a sharp instrument while incarcerated in a penal institution with two strike priors and sentenced to a prison term of 25 years to life in 2008 in Sacramento County Superior Court. See Petition, p. 1. Petitioner challenges his conviction/sentence on the following grounds: 1) ineffective assistance of counsel for "cumulative reasons," including, failure to investigate accuracy of rules violation report, failure to investigate/challenge credibility of prosecution witnesses, failure to object to critical evidence obtained in violation of petitioner's constitutional rights, failure to object to improper questioning by the prosecutor that implicated a petitioner's/defense witness's Miranda rights/right not incriminate himself, failure to object to inappropriate questions of defense witnesses by prosecution or to the harassment or badgering a defense witness, failing to consider/realize prejudice to petitioner by making a comparison of him to "Al Queda" in closing argument; 2) due process violation by trial court error in failing to permit jury instruction/defense argument on a necessity defense theory which had supporting evidence; 3) due process violation by trial judge's "abuse of discretion" in refusing to provide exculpatory evidence and by permitting improper questioning by prosecutor; 4) due process violation by trial judge error in failing to define "corpus delicti" and its application; 5) defense counsel grossly mischaracterized probable sentence on guilty plea on strike priors and gave erroneous advice regarding possible jury trial;*fn1 6) the state court decision was an unreasonable application of clearly established law with respect to the petitioner's contention that his possession of the deadly weapon was not voluntary;7) the 25-year-to-life sentence is grossly disproportionate to the offense and violates the Eighth Amendment's prohibition of cruel and unusual punishment; 8) the judge, rather than the jury, determined the verdict because of the court's exclusion of the necessity defense.*fn2 Petition, pp. 4-12.*fn3
Pending before the court are: 1) respondent's motion to dismiss claims one, three, four, five and seven for failure to exhaust state court remedies, filed on October 28, 2011, to which petitioner filed his response in the form of a 2) motion to stay, filed on January 3, 2012,*fn4 to which respondent filed an opposition on February 6, 2012.
The exhaustion of state court remedies is a prerequisite to the
granting of a petition for writ of habeas corpus. 28 U.S.C. §
2254(b)(1). If exhaustion is to be waived, it must be waived
explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3).*fn5
A waiver of exhaustion, thus, may not be implied or inferred.
A petitioner satisfies the exhaustion requirement by providing the
highest state court with a full and fair opportunity to consider all
claims before presenting them to the federal court. Picard v. Connor,
404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th
Cir.), cert. denied, 478 U.S. 1021 (1986).
On July 30, 2008, following a jury trial, petitioner was convicted of possession of a dirk or dagger or sharp instrument in a prison in violation of Cal. Pen. Code § 4502(a), that petitioner admitted to having been convicted of robbery in 1999 and attempted murder in 2004 and that he was sentenced to a term of 25 years to life. Motion to Dismiss (MTD), p. 1, respondent's Lodged Document 1. Petitioner filed a petition for review on direct appeal to the California Supreme Court on April 26, 2010, which was denied on June 9, 2010. Id., Respondent's Lodged Documents 1 & 2. Petitioner has confirmed respondent's contention that petitioner has filed no state habeas petitions, by, on the instant habeas petition form, having checked "no" to the question as to whether, other than a direct appeal, he had filed any petition or application with respect to the judgment in any state or federal court [other than the present one, of course]. Petition, p. 2.
A review of the state Supreme Court petition confirms respondent's argument that petitioner has exhausted only his claims related to the defense of necessity, that is, his claims two, six and eight. The sole issue before the California Supreme Court was framed as follows:
On the facts of this case and where evidence indicated defendant possessed the weapon solely because of fear or great bodily harm from other inmates if he refused to do so, he was entitled to an instruction on necessity as a defense.
Respondent's Lodged Document 1.
In his motion for a stay, petitioner appears to be contending that the claims of the instant petition have already been presented to the state court, but concedes that the state-appointed appellate counsel did not present the issues in a "concise and specific manner... . [or] "was unable to concisely and specifically" argue and present all of the issues. Motion to Stay (MTS), pp. 2-3. That being the case, petitioner contends, he has provided good cause for the court to grant an order to stay the petition. In his opposition to the petitioner's motion for a stay and abeyance pending exhaustion of unexhausted claims, respondent argues that petitioner is not shown good cause for a stay and a stay would otherwise be futile. Opposition (Opp.) to Motion to Stay, pp. 1-6.
Stay and Abeyance Legal Standards/Discussion
A court may stay a petition and hold it in abeyance pursuant to either Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (1995), or King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009)(citing three-step procedure of Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)*fn6 ). Kelly and Rhines set out different procedures and impose different requirements for obtaining a stay.*fn7
Under Rhines, 544 U.S. at 277-78, 125 S.Ct. at 1535, the United States Supreme Court found that a stay and abeyance of a mixed federal petition should be available only in the limited circumstance that good cause is shown for a failure to have first exhausted the claims in state court, that the claim or claims at issue potentially have merit and that there has been no indication that petitioner has been intentionally dilatory in pursuing the litigation. Under Kelly, the court may stay a petition containing only exhausted claims while allowing the petitioner to proceed to state court to exhaust additional claims. Id. (citing Kelly, 315 F.3d at 1070--71). Once the additional claims have been exhausted, the petitioner may amend his petition to add them to the original petition, provided that the claims are not time-barred (as a stay pursuant to Kelly does not toll the federal limitations period with respect to the ...