The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se and in forma pauperis, proceeds with a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss. Petitioner opposes the motion. Also pending is petitioner's motion for leave to amend the petition. Upon review of the motions, the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND On May 4, 2007, petitioner was convicted by a jury of second degree murder, in violation of California Penal Code § 187, and being a felon in possession of a firearm, in violation of California Penal Code § 12021(a). Second Amended Petition ("SAP") at 2. On June 25, 2007, petitioner was sentenced to state prison for an aggregate term of 15 years to life plus eight months. Id.
On March 7, 2008, petitioner filed a timely appeal with the California Court of Appeal, Third Appellate District, raising only a single claim for relief: insufficient evidence. Lod. Doc. No. 1. On December 31, 2008, plaintiff's appeal was denied. Lod. Doc. No. 4.
Petitioner timely filed a petition for review in the California Supreme Court, which summarily denied the petition on March 11, 2009. Lod. Doc. Nos. 5-6.
On January 26, 2010, petitioner filed a petition for writ of habeas corpus with the San Joaquin County Superior Court. Lod. Doc. No. 7. There, petitioner brought two claims for relief: ineffective assistance of trial counsel and denial of right to fair trial. Id. This petition was denied on March 4, 2010 by the superior court for petitioner's failure to support his claims. Lod. Doc. No. 8.
On February 9, 2010, petitioner filed suit in this court, raising the following grounds for relief: (1) insufficient evidence, (2) ineffective assistance of trial counsel, and (3) denial of right to a fair trial. The court screened this complaint on March 23, 2010 and found that only the first ground for relief was exhausted. ECF No. 6. Accordingly, petitioner was granted leave to file either a motion to stay or an amended petition containing only exhausted claims.
Plaintiff filed a motion to stay on April 19, 2010, which the court granted on June 1, 2010 pursuant to King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) and Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). ECF No. 9. Petitioner's second and third claims, which were unexhausted, were stricken without prejudice and this action was administratively stayed.
While this action was stayed, petitioner filed a first amended petition in this court, which was stricken from the docket as improperly filed because it was determined to be a copy of a petition intended to be filed in the Superior Court of San Joaquin and submitted here to demonstrate that petitioner is still in the process of exhausting his claims. See ECF Nos. 12-13.
On April 21, 2011, petitioner filed a second petition for writ of habeas corpus in the San Joaquin County Superior Court. Lod. Doc. No. 9. In that second petition, petitioner raised three grounds for relief: (1) ineffective assistance of trial counsel, (2) denial of right to fair trial, and (3) ineffective assistance of appellate counsel. On July 6, 2011, the petition was denied by the San Joaquin County Superior Court. Lod. Doc. No. 10.
On December 9, 2011, filed a petition for writ of habeas corpus with the California Court of Appeal, Third Appellate District. Lod. Doc. No. 11. This petition was summarily denied by the appellate court on December 15, 2011. Lod. Doc. No. 12.
Also on December 9, 2011, petitioner filed the operative SAP in this court. ECF No. 14. Here, petitioner seeks relief on grounds of (1) ineffective assistance of trial counsel, (2) denial of right to fair trial, and (3) ineffective assistance of appellate counsel. Petitioner does not raise a claim of insufficient evidence.
On February 8, 2012, one month after filing the SAP in this court, petition filed a petition for writ of habeas corpus with the California Supreme Court, Case No. S199959. Lod. Doc. No. 13. That petition raised the following claims: (1) ineffective assistance of trial counsel, (2) denial of right to fair trial, and (3) ineffective assistance of appellate counsel. Id. Examination of the California Supreme Court's website reflects that petitioner's habeas petition was denied on May 23, 2012.*fn1
On March 30, 2012, respondent filed the instant motion to dismiss. Petitioner opposes this motion and also seeks leave ...