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 and in forma pauperis, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has filed a petition challenging his 2005 conviction for continuous sexual abuse, lewd and lascivious conduct and aggravated sexual assault for which he was sentenced in 2007 to a term of 44 years to life. Petition, p. 1; Respondent's Lodged Document No. 1.*fn1 Petitioner therein raises seven separate grounds, the first six of which petitioner concedes are unexhausted and pending before the state Supreme Court. Id., at 4-49.
Before the court is petitioner's motion for a stay and abeyance of the petition pending exhaustion of grounds one through six in the state Supreme Court, to which the court directed a response from respondent, after which petitioner filed a reply. Respondent, along with an opposition to the motion to stay, also included a motion to dismiss the petition as untimely. However, for reasons set forth below, at this time respondent's motion to dismiss will be vacated without prejudice.
The court directed respondent to file a response to the motion to stay, which he did. However, the undersigned finds that respondent was precipitate in filing, as well, a motion to dismiss as barred by the statute of limitations. Petitioner objects that respondent should not be permitted to transmute a response to a stay motion into a motion to dismiss. See petitioner's Objections. Because, inter alia, the court finds that the standard for equitable tolling, implicated by the motion to dismiss, is more stringent than the good cause standard required for a stay pursuant to Rhines, infra, the court will vacate respondent's dismissal motion at this time but will do so without prejudice. See below. However, in filing the motion, respondent has provided some documents that are relevant to issues petitioner raises and the court will make use of them to correct typographical, and other, errors petitioner has made in representing the dates of certain state court filings.
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)*fn2 ). Kelly and Rhines set out different procedures and impose different requirements for obtaining a stay. 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. This is a higher standard than Kelly, under which 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 unexhausted claims). Id. at 1135, 1140--41. The court may deny a request for a stay under Kelly if the new claims cannot be added to the existing habeas petition after they are exhausted in state court due to the time-bar. See id. at 1141.
In this instance, what is at issue is whether petitioner is entitled to a stay under Rhines.
There is no dispute that petitioner's petition for review was denied on September 9, 2009,*fn3 which signifies that petitioner's direct appeal became final on December 8, 2009, ninety
(90) days thereafter. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("holding] that the period of 'direct review' in 28 U.S.C. § 2244(d)(1)(A) includes the [ninety-day] period within which a petitioner can file a petition for a writ of certiorari with the United States Supreme Court, whether or not the petitioner actually files such a petition."). The one-year AEDPA statute of limitations began to run the day after the date of final conviction. Petitioner references having filed a state habeas petition in Sacramento County Superior Court on August 8, 2010,*fn4 by very generous application of the mailbox rule,*fn5 at which point some two hundred forty-three days*fn6 of the AEDPA one-year statute of limitations had expired; that petition was denied on September 20, 2010.*fn7 Motion (MTS), pp. 2, 4; see respondent's Lodged Doc. Nos. 11 & 12. Petitioner filed a habeas petition in the state appellate court on November 19, 2010, which was denied on Dec. 29, 2010; his petition to the state Supreme Court was filed on February 24, 2011,*fn8 and denied on Sept. 14, 2011. MTS, at 2-3; respondent's Lodged Doc. Nos. 13-16. His currently pending habeas petition before the state Supreme Court was filed on Feb. 13, 2012. Respondent's Lodged Doc. No. 17.*fn9
Petitioner states that he provided notice/motion to amend, on July 1, 2011, to the California Supreme Court of additional claims/issues he intended to present. MTS, at 3-4. The Feb. 24, 2011, state Supreme Court petition, as noted, was denied on September 14, 2011,*fn10 without that court having acted on petitioner's notice/motion. Id. Petitioner waited another thirty days to afford the state's high court an opportunity to provide a response to the July 1, 2011, motion. Id. When he heard nothing after that time, he felt compelled to file "a second or successive petition" which included all of the claims and issues which he had informed the state court in his motion that he wished to include in his petition. Id., at 3. It was this petition, filed on February 4, 2012, that contained the six unexhausted claims for which he seeks a stay. Respondent's Lodged Doc. No. 17. The instant federal petition was filed, by application of the mailbox rule, on February 10, 2012. Respondent does not dispute that petitioner is entitled to tolling for the period of time from August 8, 2010, through September 14, 2011, during the round of those state habeas petitions. Opposition (Opp.), p. 5. There were 122 days remaining for petitioner to file a timely petition and respondent is correct that the statute ran on January 14, 2012, rendering petitioner's application in this court late by some 27 days or almost a month. Nevertheless, as noted above, this conflates the question of whether petitioner would be entitled to equitable tolling for the filing of the instant petition with the issue of whether ...