The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISMISSING AS MOOT PETITIONER'S MOTION FOR A STAY OF THE PROCEEDINGS (DOC. 12) ORDER REQUIRING PETITION TO FILE ANY MOTION TO AMEND THE PETITION NO LATER THAN FORTY-FIVE (45) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER ORDER SETTING BRIEFING SCHEDULE FOR ANY MOTION TO AMEND
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is the Petitioner's motion to stay the petition, which was filed on March 19, 2012. *fn1 Respondent filed an opposition to the motion on November 1, 2012. Petitioner filed a reply on November 19, 2012. The Court has further considered portions of the state court record that were filed by Respondent in support of its answer to the present petition, which contains only fully exhausted claims. Respondent cited to portions of the state record in its opposition to the motion for a stay.
Petitioner raised three claims in the petition which involved a suggestive photo identification, discovery withheld by the prosecution, and jury selection error. Petitioner seeks a stay to permit him to exhaust state court remedies as to the following new claims: 1) Petitioner was deprived of his right to have every element of the offense proved, 2) the charges were impermissibly broadened, 3) trial counsel was ineffective at unspecified critical stages of the trial, and 4) there was insufficient evidence to support a conviction of attempted robbery or a special circumstance finding. (Doc. 12.) Petitioner intends to amend his petition to add the four additional claims after state court remedies are exhausted.
Petitioner is serving a sentence of life without possibility of parole imposed in the Merced County Superior Court (MCSC) in May 2009 for murder and attempted robbery with prior convictions. (Ans., doc. 24, 8.) The documents before the Court establish that although Petitioner's efforts to exhaust state court remedies as to the new claims were not complete at the time the instant petition was filed, the California Supreme Court denied summarily on December 19, 2012, a petition for writ of habeas corpus that had been filed by Petitioner on October 25, 2012. *fn2
It may be fairly inferred from Petitioner's submissions that he had submitted the new claims to the California Supreme Court in the recently denied habeas petition.
A district court has discretion to stay a petition which it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276 (2005); King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir. 2009). A petition may be stayed either under Rhines, or under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). King v. Ryan, 564 F.3d 1133, 1138-41 (9th Cir. 2009).
Under Rhines, the Court has discretion to stay proceedings; however, this discretion is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Rhines, 544 U.S. at 276-77. In light of AEDPA's objectives, "stay and abeyance [is] available only in limited circumstances" and "is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 277-78. A stay of a mixed petition pursuant to Rhines is required only if 1) the petitioner has good cause for his failure to exhaust his claims in state court; 2) the unexhausted claims are potentially meritorious; and 3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics. Id.
A petition may also be stayed pursuant to the procedure set forth by the Ninth Circuit in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Under this three-step procedure: 1) the petitioner files an amended petition deleting the unexhausted claims; 2) the district court stays and holds in abeyance the fully exhausted petition; and 3) the petitioner later amends the petition to include the newly exhausted claims. See, King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). However, the amendment is only allowed if the additional claims are timely. Id. at 1140-41.
A stay under Rhines permits a district court to stay a mixed petition and does not require that unexhausted claims be dismissed while the petitioner attempts to exhaust them in state court. In contrast, a stay pursuant to the three-step Kelly procedure allows a district court to stay a fully exhausted petition, and it requires that any unexhausted claims be dismissed. Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005). Additionally, the Kelly procedure remains available after the decision in Rhines, and is available without a showing of good cause. King v. Ryan, 564 F.3d at 1140.
Petitioner does not indicate whether he seeks a Rhines stay or a Kelly stay. *fn3 Rhines is applicable to mixed petitions; a stay pursuant to Kelly is applicable to the petitions such as the present one, which contains only fully exhausted claims. Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005). ...