The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Petitioner is a state prisoner who seeks habeas relief pursuant to 28 U.S.C. § 2254 for his 2008 conviction for first degree murder with special circumstance, and his resulting sentence of life without the possibility of parole. Petitioner commenced this action on April 13, 2011 and was appointed counsel on August 26, 2011. (Dkt. Nos. 1, 20.) Following a status conference, petitioner was granted leave to file an amended petition. (Dkt. Nos. 28, 29.)
Pending before the court is petitioner's July 20, 2012 motion to stay this action pursuant to Rhines v. Weber, 544 U.S. 269 (2005) while petitioner exhausts state remedies as to a new claim. (Dkt. No. 49 ("Mtn.").) Along with his motion, petitioner submits an amended petition containing two previously-exhausted claims (Claims 1 and 2) and an unexhausted claim (Claim 3). (Dkt. No. 49-1 ("Am. Pet.").) Respondent has filed an opposition to the motion, and petitioner has filed a reply. (Dkt. Nos. 50, 52.) For the following reasons, the court will grant petitioner's motion to stay.
Under Rhines, the court may stay a mixed petition containing both exhausted and unexhausted claims pending exhaustion of the unexhausted claims if petitioner shows that (1) the unexhausted claims are potentially meritorious; and (2) petitioner had good cause for his earlier failure to exhaust state remedies. As to the unexhausted Claim 3, the court addresses these factors in turn.
Claim 3 asserts that petitioner "was denied his right to effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments when trial counsel failed to adequately investigate and present a defense based on diminished actuality." (Am. Pet. at 32.)
As background to this claim, the court recounts the following facts set forth in the January 8, 2010 opinion of the Court of Appeal, Third Appellate District:
Defendants Gerald Howard and Carmel Murphy lured Donte Rogers to a park, shot him in the head and abdomen, and emptied the pockets of his pants. In a joint trial with separate juries, Howard was found guilty of first degree murder while lying in wait and misdemeanor petty theft, both while armed. Murphy was found guilty of first degree murder and robbery, both while armed. Howard was sentenced to life without the possibility of parole for the murder, an additional one year for the arming enhancement, and an additional six months for misdemeanor theft. . . .
Murphy was sentenced to life without the possibility of parole for the murder, an additional one year for the arming enhancement, and an additional three years (stayed) for the robbery. . . .
Howard's defense was that he was the "duped pawn" and Murphy was the "queen." To support his defense, he introduced the testimony of Tawon Woodruff, who had met Howard on a number of occasions. According to Woodruff, Howard was "weak- minded," unintelligent, and did things he did not want to do. Howard also introduced the testimony of his ...