Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's May 29, 2012 motion for stay and abeyance.
On May 29, 2012, petitioner commenced this action by filing a petition for writ of habeas corpus, challenging a 2008 judgment of conviction entered in the Sacramento County Superior Court for attempted murder and robbery, with sentencing enhancements for personal use of a firearm and causing great bodily injury. On that same date, petitioner filed a motion for stay and abeyance, asking the court to stay this federal habeas action in order to allow him to complete the exhaustion process in state court with respect to several of his claims.
On October 15, 2012, this court ordered respondent to file a response to both the habeas petition and the motion for stay and abeyance. On November 14, 2012, respondent filed an opposition to petitioner's motion for stay and abeyance and a request for extension of time to file a response to petitioner's habeas petition. On November 16, 2012, the court granted respondent's request for an extension of time and directed respondent to file a response to the habeas petition within thirty days of any court order denying the motion for stay and abeyance.
On January 22, 2013, petitioner filed another petition for writ of habeas corpus in this court.
II. Stay and Abeyance Procedures
The United States Court of Appeals for the Ninth Circuit has analyzed the two procedures available to habeas petitioners who wish to proceed with exhausted and unexhausted claims for relief. See King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). First, the Ninth Circuit explained "the Kelly procedure," outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Under the three-step Kelly procedure,
(1) the petitioner amends his petition to delete any unexhausted claims, (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted claims, and (3) petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition.
King, 564 F.3d at 1135. A petitioner who elects to proceed under the Kelly procedure will be able to amend his petition with his newly exhausted claims if they are timely under the statute of limitations governing the filing of federal habeas petitions. If a petitioner's newly-exhausted claims are untimely, he will only be able to amend his petition to include them if they share a "common core of operative facts" with the claims set forth in his original federal petition. In this regard, the Kelly procedure, unlike the alternative procedure discussed below, is a riskier one for a habeas petitioner because it does not protect a petitioner's unexhausted claims from expiring during a stay. See King, 564 F.3d at 1140-41. See also Duncan v. Walker, 533 U.S. 167, 172-75 (2001) (unlike the filing of a state habeas petition, the filing of a federal habeas petition does not toll the statute of limitations).
As the Ninth Circuit explained in King, the United States Supreme Court has authorized an alternative procedure which it outlined in Rhines v. Weber, 544 U.S. 269, 277 (2005). Under the Rhines procedure, the petitioner need not amend his federal habeas petition to delete unexhausted claims. Instead, the petitioner may proceed on a "mixed petition," i.e., one containing both exhausted and unexhausted claims, and his unexhausted claims remain pending in federal court while he returns to state court to exhaust them. See King, 564 F.3d at 1140; Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) ("Rhines concluded that a district court has discretion to stay a mixed petition to allow a petitioner time to return to state court to present unexhausted claims."). A petitioner who elects to proceed under the Rhines procedure can, in many instances, avoid an issue with respect to the timeliness of the claims set forth in his federal petition. See King, 564 F.3d at 1140. However, the Supreme Court has cautioned that a "stay and abeyance [under the Rhines procedure] should be available only in limited circumstances," and "district courts should place reasonable time limits on a petitioner's trip to state court and back." Rhines, 544 U.S. at 277-78. The Supreme Court explained that district courts should not grant such a stay if the petitioner has engaged in abusive litigation tactics or intentional delay or if the unexhausted claims are plainly meritless. Id. at 278. Further, under Rhines, "'stay-and-abeyance 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.'" King, 564 F.3d at 1139 (quoting Rhines, 544 U.S. at 277-78).*fn1 The decisions in both Kelly and Rhines "are directed at solving the same problem -- namely, the interplay between AEDPA's one-year statute of limitations and the total exhaustion requirement first articulated in Rose v. Lundy, 455 U.S. 509 (1982)."*fn2
On direct appeal in state court, petitioner claimed that the trial court violated his right to a jury trial in removing a juror for misconduct and that the evidence introduced at his trial was insufficient to sustain the finding that he discharged a firearm causing great bodily injury. (Doc. No. 1 (Pet.) at 2; see also People v. Richard, Nos. C060092, C062587, 2010 WL 2794942 (Cal. App. 3d Dist. Nov. 24, 2010)). Petitioner sought further appellate relief in the California Supreme Court but his request for relief was denied. (Pet. at 2.)
In his two federal habeas petitions filed in this court on May 29, 2012 and January 22, 2013, petitioner raises the following claims for relief: (1) the trial court violated his right to a jury trial in removing a juror for misconduct; (2) the evidence introduced at his trial was insufficient to sustain the finding that he discharged a firearm causing great bodily injury; (3) the introduction into evidence at his trial of evidence obtained from an unlawful search and seizure violated his Fourth Amendment rights; (4) the trial court abused its discretion in denying his motion to suppress the evidence obtained as a result of the unlawful search and seizure; (5) the evidence introduced at his trial was insufficient to support his conviction for attempted murder; (6) his appellate counsel rendered ineffective assistance; (7) his trial counsel rendered ...