ORDER DENYING PETITIONER'S MOTION FOR STAY AND ABEYANCE WITHOUT PREJUDICE ECF No. 1
STANLEY A. BOONE, Magistrate Judge.
Petitioner is proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by David Mugridge, Esq.
On June 13, 2013, pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented to the jurisdiction of the United States magistrate judge. Local Rule 305(b).
Petitioner filed the instant petition for writ of habeas corpus on May 29, 2013, along with a motion for a stay pending exhaustion of unexhausted claims in state court.
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 seeks a stay under Rhines. In his direct appeal, Petitioner raised the following claims: (1) ineffective assistance of counsel; (2) judicial complacency and incompetence; and (3) prosecutorial misconduct. (Pet., 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) petitioner was denied his constitutional right to a fair trial due to the ineffective assistance of defense counsel; and (3) judicial complacency and prosecutorial misconduct combined to deny petitioner a fundamentally fair trial. (Pet. at 33-69.)
On December 9, 2011, the California Court of Appeal affirmed Petitioner's conviction. (Pet., Ex. A.) On January 23, 2012, Petitioner filed a petition for review in the California Supreme Court. The petition was denied on February 29, 2012. (Pet., Ex. B.)
On March 8, 2013, Petitioner filed a petition for writ of habeas corpus in the Appellate Division of the Mariposa County Superior Court. (Pet., Ex. C.) The petition was denied on April 4, 2013.
On April 25, 2013, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The petition is currently pending ...