The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel. On August 1, 2012, petitioner filed a petition for writ of habeas corpus, accompanied by a notice that the petition contained unexhausted claims, and seeks a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005) ("Rhines"). Petitioner concedes that two of his three claims are not exhausted. Petitioner's first claim was exhausted on direct appeal: (1) there was insufficient evidence that petitioner assaulted the victim with a deadly weapon. Claims two and three are unexhausted, and petitioner filed*fn1 a petition for writ of habeas corpus in the Shasta County Superior Court raising these new claims: (2) petitioner's conviction is based in material part on false evidence; and (3) petitioner was deprived of his Sixth Amendment right to the effective assistance of trial counsel. All three claims are included in the instant petition.
Petitioner seeks to stay and abey the habeas petition under Rhines while petitioner exhausts the two new claims in the state courts. Petitioner claims counsel was recently retained, and that following review of defense counsel's file, counsel determined that there was a discrepancy between the testimony a material witness offered at trial and that witness' statement provided to the defense investigator as to where the witness was standing. (Dkt. No. 3 at 2-3.) Counsel's investigator subsequently determined, following investigation at the crime scene, that "it was physically impossible for [the witness] to have seen the incident as he described." (Dkt. No. 1 at 19.) In support of the instant request, petitioner provided curriculum vitae for the private investigator, a diagram of the crime scene and a video created by the private investigator, as well as a declaration from the private investigator. (Id. and Dkt. No. 2 at 69-82.)
In Rhines,*fn2 the Supreme Court held that courts may stay mixed petitions while a petitioner exhausts his unexhausted claims in state court only when 1) good cause exists for petitioner's failure to exhaust; 2) petitioner's unexhausted claims are not "plainly meritless"; and 3) there is no indication that petitioner engaged in "abusive litigation tactics or intentional delay." Id., 544 U.S. at 277-78; King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). In Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), the Supreme Court approved the filing of "protective petitions":
Finally, petitioner challenges the fairness of our interpretation. He claims that a "petitioner trying in good faith to exhaust state remedies may litigate in state court for years only to find out at the end that he was never 'properly filed,'" and thus that his federal habeas petition is time barred. Brief for Petition 30. A prisoner seeking post conviction relief might avoid this predicament, however, by filing a "protective" petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted. See Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 1531 (2005). A petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute "good cause" for him to file in federal court.
The following facts are relevant to the good cause determination. Petitioner was convicted in 2009. His conviction was affirmed on February 28, 2011. People v. Cowan, Case No. C061895 (Cal. App. 3 Dist., 2011) (Dkt. No. 2 at 4). The California Supreme Court denied the petition for review without comment on May 11, 2011. (Dkt. No. 2 at 48.) Petitioner's conviction became final ninety days later, on August 9, 2011, when the time for seeking certiorari with the United States Supreme Court expired. Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). The AEDPA statute of limitations period began to run the following day, on August 10, 2011. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Thus, absent tolling, petitioner's last day to file his federal petition ran on August 10, 2012. Counsel for petitioner filed the petition on August 1, 2012.*fn3 Therefore, the instant petition was timely filed.*fn4
Petitioner identifies several facts that demonstrate good cause for granting a stay and abeyance under Rhines. First, petitioner recently retained counsel who discovered the discrepancy between the material witness' pre-trial statement to the defense investigator and the witness' testimony at trial. Second, petitioner's counsel retained a private investigator who investigated the crime scene and determined that the witness' porch was situated in such a way that the witness could not have seen the incidents to which he testified. Third, the investigator's declaration is dated July 25, 2012, and counsel for petitioner mailed petitioner's state habeas corpus petition to Shasta County on July 30, 2012, demonstrating counsel acted diligently in raising the newly-discovered claims in state court. Counsel was similarly diligent in filing the instant petition on August 1, 2012. These facts support a finding of good cause under Rhines.
In addition, the two unexhausted claims are potentially meritorious, and it does not appear that petitioner intentionally engaged in dilatory litigation tactics. Indeed, counsel for petitioner filed the state court petition as soon as practicable once she identified the two unexhausted claims. Thus, petitioner's motion for stay under Rhines should be granted.
Moreover, petitioner alleges that he filed the instant protective petition because he is not sure whether the state courts will find his habeas petitions "properly filed." 28 U.S.C. § 2244(d)(1)(2) (properly filed application for state post-conviction relief tolls the statute of limitations). Based on this claim, the undersigned finds that petitioner also demonstrated good cause to file a protective petition under Pace, 544 U.S. at 416.
For all of these reasons, the court finds that petitioner's motion for stay under Rhines, 544 U.S. at 278, should be granted, and petitioner be directed to file a motion to lift the stay in this court, within thirty days from the date the California Supreme Court issues a final order resolving petitioner's claims two and three.
While the court recommends granting petitioner's motion for stay, petitioner is cautioned that he must not unreasonably delay his efforts to exhaust claims two and three in the state courts. Petitioner should expeditiously exhaust his state court remedies as to claims two and three, and promptly seek to lift the stay once the California Supreme Court rules on these claims.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign a ...