The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER GRANTING PETITIONER'S MOTION FOR STAY AND ABEYANCE OF HABEAS CORPUS PROCEEDINGS [ECF No. 22]
Petitioner is proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On October 5, 2009, the Fresno County Superior Court declared Petitioner a ward of the court and placed him in the California Department of Corrections and Rehabilitation, Division of Juvenile Justice for three counts of assault with a firearm (Cal. Penal Code § 245(a)(2))*fn1 with enhancements for personal use of a firearm (§ 12022.5(a)) and personal infliction of great bodily injury (§ 12022.7(a)). The court found the aggregate maximum confinement time to be seventeen years.
On November 3, 2010, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (Opp'n, Ex. A.)
On April 9, 2012, Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court. The petition was denied in a reasoned opinion on June 25, 2012. (Opp'n, Exs. B & C.)
Petitioner filed the instant federal petition for writ of habeas corpus on April 10, 2012 and requests the Court hold these proceedings in abeyance pending exhaustion of state court remedies. (Pet. at 9-18.) The Court directed Respondent to file a response to Petitioner's request to stay the proceedings, and Respondent filed a timely response on November 6, 2012. Petitioner filed a reply on February 7, 2013.
There are two different procedures to hold a petition in abeyance in federal court. In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court held that a district court has discretion to stay a mixed petition to allow a petitioner to present his unexhausted claims to the state court in the first instance and then to return to federal court for review of his perfected petition. The Supreme Court noted that, while the procedure should be "available only in limited circumstances," it "likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. at 278. The Ninth Circuit has held that the Rhines "good cause" standard does not require a petitioner to show that "extraordinary circumstances" prohibited him from exhausting his claims. See Jackson v. Roe, 425 F.3d 654, 661-662 (9th Cir. 2005).
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.
Petitioner acknowledges the availability to seek a stay under Kelly, however, he seeks a stay under Kelly only if the motion to stay under Rhines is denied.
In his direct appeal, Petitioner raised the following two claims: (1) sufficiency of the evidence and (2) ineffective assistance of counsel. (Opp'n, Ex. A.) The claims were denied on the merits by the state court.
In the instant federal petition, Petitioner raises the following three claims: (1) "The state court adjudication resulted in a decision contrary to clearly established principles of federal law as established by the United States Supreme Court and therefore petitioner is justified in seeking relief under the applicable AEDPA standards"; (2) "The evidence presented at the adjudication was insufficient to support the judgment and therefore violates petitioner's right to due process of law"; and (3) "Petitioner was denied his constitutional right to effective assistance of counsel due to defense counsel's failure to subject the prosecution's case to meaningful adversarial testing which would have demonstrated the insufficiency of the evidence thereby denying petitioner's right to due process of law." (Pet. at 9-24.)
In his state habeas corpus petition filed on April 19, 2012, Petitioner claimed ineffective assistance of counsel based on several different grounds. (Opp'n, Ex. B.) The California Superior Court, Fresno County, denied the petition on the merits. The court found that Petitioner raised two claims: (1) sufficiency of the evidence and (2) ineffective assistance of counsel. (Opp'n, Ex. C.) The court concluded the sufficiency of the evidence claim was not a proper issue for consideration in a petition for writ of habeas corpus. Id. The court then analyzed the following five claims of ineffective assistance of counsel: (1) counsel failed to interview Petitioner's cousin, Jacob, and call him as a witness; (2) counsel failed to interview Petitioner's friend, Ericka Terry, and call her as a witness; (3) counsel failed to investigate the sobriety of the victims; (4) counsel and/or the defense investigator failed to investigate whether Daisy could have actually seen a shadow of a person standing behind her ...