The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION; DENYING MOTION TO STAY [Doc. Nos. 3 & 20]
Presently before the Court is Petitioner William R. Viltz's ("Petitioner") motion for stay and abeyance. [Doc. No. 3.] Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on June 18, 2012, [Doc. No. 1], and filed a First Amended Petition on August 15, 2012, [Doc. No. 8]. In Petitioner's motion for stay and abeyance he requests the Court stay further proceedings on his Petition in order to exhaust claim one, in which he asserts that his constitutional right to a fair trial was violated by the trial court's failure to instruct the jury as to the lesser included offense of attempted rape and that his "conviction was based on a set of facts different from the preliminary hearing . . . . [and] on unspecified acts which could each constitute the count charged." (Pet. at 4 [Doc. No. 8]; Appendix 1 at 2 [Doc. No. 8-1]; Pet.'s Mot. at 2 [Doc. No. 3.])
The Court referred the matter to Magistrate Judge Barbara L. Major, who issued a Report and Recommendation ("R&R") recommending that Petitioner's motion for stay and abeyance be granted. [Doc. No. 20.] The R&R concludes that Petitioner has not shown good cause under Rhines v. Weber, 544 U.S. 269, 278 (2005) for a stay to issue, but that Petitioner has sufficiently met the standard under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), to grant a stay of the action. [Id. at 6, 10.] On January 2, 2013, Petitioner filed a document titled "Request to Dismiss Request for Stay & Abeyance," filed as an Objection to the R&R, which states that his formerly unexhausted claim has now been exhausted with the California Supreme Court, and therefore, he requests the Court dismiss his Motion to Stay. [Doc. No. 21.]
Having reviewed Petitioner's motion, Respondent L.S. McEwen's response [Doc. No. 16], and the R&R, the Court hereby approves and ADOPTS IN PART and DECLINES TO ADOPT IN PART the R&R. See 28 U.S.C. § 636(b)(1) as indicated below.
To the extent the R&R finds that Petitioner has failed to satisfy the requirement that he show good cause under Rhines, but that issuance of a stay is appropriate under Kelly, the Court ADOPTS the R&R. Under Rhines, a district court has discretion to stay a mixed petition to allow a petitioner time to return to state court to present unexhausted claims. Rhines, 544 U.S. at 276. The stay and abeyance procedure is available only in limited circumstances, and only when: (1) there is "good cause" for the failure to exhaust; (2) the unexhausted claims are potentially meritorious; and (3) the petitioner did not intentionally engage in dilatory tactics. Id. at 277-78. As Magistrate Judge Major noted, Petitioner here has not established the good cause necessary for a stay because he has not explained why he did not present the claims earlier. (R&R at 6.)
In contrast, an abeyance under Kelly requires compliance with a three-step procedure, as follows: (1) the petitioner must file an amended petition with only his exhausted claims, deleting his unexhausted claims; (2) the district 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) after conclusion of state court exhaustion proceedings, petitioner must seek to amend the federal petition to reattach "the newly exhausted claims to the original petition." King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). However, the petitioner is only allowed to add the fully exhausted claims back to the federal petition if the claims are timely under AEDPA or "relate back" to the exhausted claims in the petition. Id. at 1140-41, see also Mayle v. Felix, 545 U.S. 644, 662-64 (2005). A new claim does not "relate back" to an existing claim simply because it arises from "the same trial, conviction or sentence." Id. at 1141. If the newly-exhausted claim is not timely under AEDPA or the relation-back doctrine, it may not be added to the existing petition. Id. at 1140.
Here, the R&R correctly calculated the start of the statute of limitations for the Petition, and determined Petitioner was entitled to sufficient statutory tolling to render his claims timely for purposes of a stay under Kelly. (R&R at 9-10.) Therefore, the Court ADOPTS the reasoning of the R&R to the extent it determines that Petitioner was entitled to a stay pursuant to Kelly. However, in light of the fact that Petitioner has now exhausted his formerly unexhausted claims, the Court DECLINES to adopt the R&R insofar as it held a stay under Kelly should be granted because the request for a stay is now moot.
For the foregoing reasons, the Court DENIES Petitioner's motion for stay and abeyance as moot.
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