The opinion of the court was delivered by: Ruben B. BROOKSUnited States Magistrate Judge
ORDER DENYING PETITIONER'S MOTION FOR STAY AND ABEYANCE FILED IN CONJUNCTION WITH PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 3]
Petitioner Shannon Shimp, a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus on June 21, 2012 [ECF Nos. 1, 5].*fn1 There, Petitioner challenges his convictions for vehicular manslaughter on several bases.*fn2 In ground one, he alleges that he is actually innocent. (Id. at 9.) In ground two, he contends that the trial court erred by failing to instruct the jury on excusable homicide. (Id. at 18.) Petitioner asserts, in ground three, that his manslaughter convictions were obtained as a result of prosecutorial misconduct. (Id. at 30.) The fourth claim for relief is that Shimp's trial counsel was ineffective for failing to raise grounds one, two, and three. (Id. at 37.) In ground five of the Petition, he argues that his appellate counsel was ineffective for failing to raise grounds one, two, three, and four. (Id. at 38.) Finally, the sixth claim is that Shimp was wrongfully sentenced because he had "no prior moving violations of any kind." (Id. at 39.)
On the same day that he filed his Petition, Shimp also filed a "Motion for Stay and Abeyance Filed in Conjunction with Petition for Writ of Habeas Corpus" [ECF No. 3]. There, he asks the Court to stay his federal petition while he exhausts five of the aforementioned claims in state court. (Mot. Stay & Abeyance 1-2, ECF No. 3.)
On June 26, 2012, the Court issued an order setting a briefing schedule for the motion to stay [ECF No. 6]. The Court cautioned that in Petitioner's Motion for Stay, he had "not presented any facts in an attempt to demonstrate good cause for his failure to timely exhaust his state court remedies." (Order Setting Briefing Schedule 3, ECF No. 6.) Shimp was given three weeks, until July 17, 2012, to file supplemental briefing to cure these deficiencies. (Id.) Respondents were also ordered to file any response to the motion by August 7, 2012. (Id.)
Neither Petitioner nor Respondents filed a response. On September 14, 2012, the Court held a status conference for Respondents to address why they failed to address Shimp's Motion for Stay. (Mins., Sept. 14, 2012, ECF No. 9.) As a result of the hearing, the Court extended the deadline for Respondents Paramo and Harris to file a response; Petitioner was also given an extension to file a reply. (Id.)
On September 20, 2012, Respondents filed a "Response to Motion for Stay and Abeyance of Petition for Writ of Habeas Corpus" [ECF No. 10]. There, they argue that Shimp should not be granted a stay under Rhines v. Weber, 544 U.S. 269 (2005), because he has not shown good cause for his failure to raise his unexhausted claims in state court at an earlier time. (Resp. Mot. Stay 4, ECF No. 10.) Paramo and Harris state that Petitioner may, however, be eligible for a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). Shimp did not file a reply.
The Court finds Petitioner's motion suitable for resolution on the papers. See S.D. Cal. Civ. R. 7.1(d)(1) (providing that motions may be decided without oral argument); Broadnax v. Cate, Civil No. 12cv560 GPC (RBB), 2012 WL 5335289, at *2-3, (S.D. Cal. Oct. 26, 2012) (resolving motion to stay with an order instead of a report and recommendation). Upon review of Shimp's Petition, the lodgments, the Motion for Stay, and Paramo and Harris's Response to Motion, and for the reasons discussed below, Petitioner's "Motion for Stay and Abeyance Filed in Conjunction with Petition for Writ of Habeas Corpus" [ECF No. 3] is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Shimp spent the afternoon of July 22, 2008, drinking at a bar in Ramona, California. (Lodgment No. 4, People v. Shimp, No. D056650, slip op. at 2 (Cal. Ct. App. Apr. 26, 2011).) He then proceeded to drive home. (Id.) While driving, he crossed a double-yellow line to pass several cars in front of him, lost control of his vehicle, and struck an oncoming car. (Id.) The driver of that vehicle, Ian Kinney, was killed. (Id.) Kinney's passenger, Tessa Medearis, was injured in the collision but survived. (Id.) Shimp's passenger, Joseph Edwards, was also killed. (Id.) At the time of the incident, Petitioner's blood-alcohol content was more than twice the legal limit. (Id.) Methamphetamine was also found in his system. (Id.)
On September 17, 2009, in the Superior Court of California, County of San Diego, a jury convicted Shimp of two counts of gross vehicular manslaughter while intoxicated; driving under the influence of alcohol and causing injury; and driving with a blood alcohol content of .08 or more and causing injury. (Lodgment No. 8, Clerk's Tr. vol. 1, 149, 151, 153-54, Sept. 17, 2009.) The jury found that Shimp personally inflicted great bodily injury upon Joseph Edwards, Tessa Medearis, and Ian Kinney, and that Petitioner caused death or bodily injury to more than one victim. (Id.) On January 8, 2010, Shimp was sentenced to sixteen years in prison for the vehicular manslaughter of Ian Kinney. (Id. vol. 2, 291, Jan. 8, 2010.) Sentencing was stayed as to the remaining convictions. (Id.)
Petitioner appealed the vehicular manslaughter convictions on July 23, 2010; they were affirmed by Division One of the California Court of Appeal, Fourth Appellate District, on April 26, 2011. (See Lodgment No. 1, Appellant's Opening Brief, People v. Shimp, No. D056650 (Cal. Ct. App. Apr. 26, 2011); Lodgment No. 4, People v. Shimp, No. D056650, slip op. at 1, 7.) On June 6, 2011, he petitioned the California Supreme Court for review. (Lodgment No. 5, Petition for Review, People v. Shimp, No. SD2010700429 (Cal. July 13, 2011).) The California Supreme Court denied the petition without opinion on July 13, 2011. (Lodgment No. 6, People v. Shimp, No. S193717, order at 1 (Cal. July 13, 2011).)
Shimp then filed a Petition for Writ of Habeas Corpus in this Court on June 21, 2012 [ECF No. 1]. Petitioner maintains that he has also filed a state habeas corpus petition, but provides no proof of that filing. (See Pet. 3, ECF No. 1.)
II. LEGAL STANDARD FOR EXHAUSTION
Before a federal court may grant habeas relief on a claim, a petitioner must exhaust all available state judicial remedies. 28 U.S.C.A. § 2254(b)(1)(A) (West 2006); Rhines, 544 U.S. at 273-74 (referring to total exhaustion requirement of Rose v. Lundy, 455 U.S. 509, 522 (1982), abrogated on other grounds by Rhines, 544 U.S. 269). A claim is exhausted only when a petitioner has fairly presented it to the state courts. Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)). To meet the fair presentation requirement, the petitioner must "alert the state courts to the fact that he [is] asserting a claim under the United States Constitution." Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citing Duncan, 513 U.S. at 365-66). The petitioner must "provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson v. Harless, 459 U.S. 4, 6 (1982) (citing Picard, 404 U.S. at 276-77). By giving state courts the "'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights," comity is promoted, and disruption of state judicial proceedings is prevented. Duncan, 513 U.S. at 365 (quoting Picard, 404 U.S. at 275); see also Rose, 455 U.S. at 518; Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005).
Constitutional claims raised in federal proceedings must be presented to the state courts first. Baldwin v. Reese, 541 U.S. 27, 31-32 (2004). The highest state court must have an opportunity to consider the factual and legal bases of a petitioner's claims before they are presented to the federal court. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (citing Picard, 404 U.S. at 276; Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996)); see also Duncan, 513 U.S. at 365; Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir. 2008). A claim is not exhausted if it is pending before the state's highest court. See Rose, 455 U.S. at 515 ("[A]s a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act . . . ."); Anderson v. Morrow, 371 F.3d 1027, 1036 (9th Cir. 2004) ("AEDPA's exhaustion requirement entitles a state to pass on a prisoner's federal claims before the federal courts do so."). "It follows, of course, that once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied." Picard, 404 U.S. at 275.
Courts may deny an application for habeas relief on the merits even if the petitioner has not yet exhausted his state judicial remedies. 28 U.S.C.A. § 2254(b)(2). But courts have no authority to grant relief on unexhausted claims. Id. § 2254(b)(1)(A).
A. Whether Shimp's Petition Should be Stayed
In his Motion for Stay, Petitioner states that he has exhausted his instructional error claim, but not his remaining claims. (Mot. Stay & Abeyance 1-2, ECF No. 3.) Accordingly, he requests a stay of his federal habeas corpus petition while he proceeds to exhaust his unexhausted claims in state court. (Id. at 2.) Shimp contends that he has diligently pursued these causes of action and that they are meritorious. (Id.) Moreover, he alleges that he has already filed a state habeas corpus petition in an attempt to exhaust his claims. (Id.)
Respondents argue that Petitioner's request for a stay may be analyzed under the tests described in Rhines and Kelly. (Resp. Mot. Stay 3, ECF No. 10.) Under the Rhines test, Respondents maintain that Shimp is not entitled to a stay because he has not shown good cause for his failure to previously exhaust his claims in state court. (Id. at 4.) Paramo and Harris submit that under Kelly, however, Petitioner may be entitled to a stay. (Id. at 4-5.)
1. Legal standards applicable to Shimp's Motion for Stay
A "mixed" petition contains both exhausted and unexhausted claims. See Rose, 455 U.S. at 510. As noted, Shimp states that his Petition contains exhausted and unexhausted claims. (Mot. Stay & Abeyance 2, ECF No. 3.) Respondents appear to agree. (See Resp. Mot. Stay 3, ECF No. 10 (citing to case law applicable to mixed petitions).) Indeed, the record supports these contentions. While Petitioner's instructional error claim was raised on direct appeal and in his petition for review filed with the California Supreme Court, his actual innocence, prosecutorial misconduct, ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and wrongful sentence claims were not. (See Lodgment No. 1, Appellant's Opening Brief at i, 25, People v. Shimp, No. D056650; Lodgment No. 5, Petition for Review at i, 5, People v. Shimp, No. SD2010700429.)
Mixed petitions may be stayed pursuant to the tests described in either Rhines or Kelly. King v. Ryan, 564 F.3d 1133, 1141 (2009). Petitioner does not articulate under which test he seeks to stay his Petition. (See generally Mot. Stay & Abeyance 1-2, ECF No. 3.) The ...