ORDER AND FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Also pending is petitioner's August 13, 2012 motion to stay this action pending exhaustion of unexhausted claims.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On July 20, 2009, petitioner was convicted by a jury of armed robbery and assault with a semi-automatic weapon, and assessed two enhancements. On September 9, 2009, petitioner was sentenced to a determinate state prison term of thirteen years.
On direct appeal, petitioner's appointed counsel raised the following grounds for relief: (1) it was prejudicial error to admit opinion testimony of gang officer that was based on unreliable hearsay, and (2) the court violated California Penal Code Section 654 when it imposed separate sentences for counts 1 and 2. See Doc. No. 1 at 67.
On March 16, 2011, the California Court of Appeal, Third Appellate District, affirmed the judgment. Doc. No. 1 at 67. Petitioner then appealed to the California Supreme Court, which, per petitioner, denied the petition on the same date that the intermediate appellate court affirmed the judgment, March 16, 2011. See id. Petitioner does not indicate whether he filed a petition for review with the United States Supreme Court.
Petitioner initiated this action on June 4, 2012 raising the following grounds for relief: (1) insufficiency of evidence; (2) prosecutorial misconduct; (3) ineffective assistance of trial and appellate counsel; (4) improper identification; and (5) the trial court erred when it failed to issue sua sponte instructions to the jury. None of these grounds are exhausted.
On July 17, 2012, petitioner filed a petition for collateral review in the Sacramento County Superior Court. See Pet.'s Decl. (Doc. No. 7 at 2).
In the pending motion, petitioner seeks a stay of this action pursuant to Rhines v. Weber, 544 U.S. 269 (2005) on the grounds that, on direct review, his appellate counsel failed to raise the grounds raised herein and that he has had limited access to the law library.
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 respondents' counsel. 28 U.S.C. § 2254(b)(3).*fn1 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). The United States Supreme Court has held that a federal district court may not entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982).
In order to grant a stay, a district court may follow either the Rhines v. Weber, 544 U.S. 269 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), procedures. However, petitioner does not qualify for a stay under either test. Under Rhines, 544 U.S. at 277, he has not shown good cause for his failure to exhaust his claim first in state court. His first reason for not having exhausted his claims is that counsel failed to raise them in state court. The Ninth Circuit has held that counsel's failure to include claims on direct appeal does not establish "good cause" to grant a pro se petitioner's request to stay a mixed federal petition under Rhines. Wooten v. Kirkland, 540 F.3d 1019, 1023-24 (9th Cir. 2008) (upholding denial of stay because petitioner's incorrect belief that counsel had raised claims to the California Supreme Court on direct appeal did not establish good cause under Rhines for failure to exhaust claims earlier). A contrary conclusion would result in every represented habeas petitioner being able to argue that appellate counsel failed to raise certain issues against the petitioner's wishes to establish good cause. Hernandez v. California, 2010 WL 1854416, at *2 (N.D. Cal. May 6, 2010) (finding appellate counsel's refusal to present claims on appeal is common occurrence of everyone with unexhausted claims). If petitioner wanted to ...