REPORT AND RECOMMENDATION ON: (1) PETITIONER'S MOTION FOR A STAY-AND-ABEYANCE OF HIS FIRST AMENDED PETITION AND (2) RESPONDENT'S MOTION TO DISMISS THE SECOND AMENDED PETITION
WILLIAM McCURINE, Jr., Magistrate Judge.
Petitioner, a state prisoner represented by Ward Stafford Clay, Esq., filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Presently before the Court is Petitioner's motion to stay and hold in abeyance his first amended petition ("FAP") as well as Respondent's motion to dismiss Petitioner's second amended petition ("SAP"). (ECF Nos. 14, 17). Petitioner filed a FAP along with a request for the Court to stay and hold in abeyance his exhausted claims pending exhaustion of his unexhausted claims in the California Supreme Court. (ECF Nos. 13, 14). Respondent filed an opposition to Petitioner's motion for a stay-and-abeyance. (ECF No. 15). Petitioner then filed the SAP containing his previously exhausted Fifth Amendment claim and his allegedly newly-exhausted Sixth Amendment claims. (ECF No. 16-1, at 5). Respondent moved to dismiss the SAP. (ECF No. 17). Petitioner did not file a response to Respondent's motion to dismiss.
This Court submits this report and recommendation to United States District Judge Janis L. Sammartino under 28 U.S.C. § 636(b)(1) and Local Civil Rule H.C.2. of the United States District Court for the Southern District of California. Because Petitioner's motion to stay and Respondent's motion to dismiss deal raise similar issues, the Court has consolidated its report and recommendations on both motions.
On January 19, 2007, a jury convicted Petitioner of the murder of Jeremy Hogan (Pen. Code,  § 187, subd. (a), count 1), assault with a semiautomatic firearm (§ 245, subd. (b), count 3), and permitting another person to discharge a firearm from a vehicle (§ 12034, subd. (b), count 4). (Lodgment No. 1, Clerk's Transcript ("CT") at 227; Lodgment No. 7, Opinion ("Op.") at 1-2). The jury found true allegations that in the course of committing murder, Petitioner personally and intentionally discharged a firearm and proximately caused great bodily injury and death (§ 12022.53, subd. (d)), and that he committed all the offenses for the benefit, and at the direction, of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). (Lodgment No. 1, CT at 227; Lodgment No. 7, Op. at 1-2). The jury acquitted Petitioner of an attempted murder count. (Lodgment No. 1, CT at 227).
On January 25, 2008, after denying Petitioner's motion for a new trial, the trial court sentenced Petitioner to the Department of Corrections for an indeterminate term of 50 years to life as follows: 25 years to life for Petitioner's violation of count 1, and a consecutive term of 25 years to life for Petitioner's violation of the firearm enhancement alleged with the count; the trial court stayed a five year term for the gang enhancement alleged with that count under Penal Code section 654. The trial court also imposed an eleven year sentence for special enhancements related to the crimes. Finally, the trial court imposed a concurrent term of two years for his violation of count 4 and a concurrent term of three years for his violation of the gang enhancement alleged with that count; the court stayed execution of both of these terms under Penal Code section 654. ( Id. at 397; Lodgment No. 10, Reporter's Transcripts, at 6089-6091).
On February 20, 2008, Petitioner filed a notice of appeal from the judgment. (Lodgment No. 1, CT at 339). On February 4, 2009, Petitioner petitioned for writ of habeas corpus with the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment No. 3, at 29). On April 4, 2009, Petitioner requested consolidation of habeas corpus, Case No. D054536, with petition for appeal, Case No. D052554. ( Id. at 12).
On July 30, 2009, the California Court of Appeal, Fourth Appellate District, Division One, consolidated Petitioner's petition for writ of habeas corpus with Petitioner's appeal. (Lodgment No. 6, Order Consolidating Direct Appeal and Petition). On the same date, that court affirmed the judgment against Petitioner and denied the petition for writ of habeas corpus. (Lodgment No. 7, Op. at 42).
On September 9, 2009, Petitioner petitioned to the Supreme Court of California for review of the California Court of Appeal judgment of conviction. (Lodgment No. 8). On November 10, 2009, the California Supreme Court denied the petition without comment, stating in full: "The petition for review is denied." (Lodgment No. 9).
Ninety days later, on February 7, 2010, the judgment became final because Petitioner did not seek certiorari from the United States Supreme Court. Brown v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). On February 8, 2010, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") one-year statute of limitations began to run. 28 U.S.C. § 2244 (d)(1)(A).
One-hundred and seventy-one days later, on July 29, 2010, Petitioner filed a federal habeas corpus petition in the United States District Court, Southern District of California. (ECF No. 1). In his petition, Petitioner raised two grounds to overturn his 2007 state court convictions: (1) ineffective assistance of counsel and (2) prosecutorial misconduct. (ECF No. 1). On October 8, 2010, Respondent filed an answer to the petition claiming the petition contained both exhausted and unexhausted claims, and thus was a "mixed" petition subject to dismissal. (ECF No. 6). In reply, Petitioner filed a traverse on November 8, 2010, insisting he fully exhausted all of his claims. Alternatively, if the Court were to find the petition "mixed, " Petitioner requested the Court stay and hold his claims in abeyance under Rhines v. Weber, 544 U.S. 269 (2005) because he had good cause for not exhausting his claims in state court. (ECF No. 8). Petitioner argued good cause existed because he believed he had fairly presented the merits of his claims to the California Supreme Court. (ECF No. 8, at 6).
This Court issued a report and recommendation ("R&R") on December 7, 2011, recommending dismissal. (ECF No. 10). On January 7, 2013, Judge Sammartino adopted the R&R and dismissed the petition without prejudice. (ECF No. 12). Judge Sammartino found Petitioner's federal habeas corpus petition contained unexhausted ineffective assistance of counsel sub-claims and an exhausted prosecutorial misconduct claim. (ECF No. 12, at 7-8). Judge Sammartino also denied Petitioner's request for a stay-and-abeyance of his mixed petition under Rhines. (ECF No. 12, at 11-12). Judge Sammartino concluded Petitioner failed to demonstrate good cause by asserting a mistaken belief that his counsel fairly presented his claims in state court. (ECF No. 12, at 12).
However, Judge Sammartino granted Petitioner forty-five days to move for a stay under the withdrawal-and-abeyance procedure outlined in Kelly.  (ECF No. 12, at 12-13). Judge Sammartino did not comment on Petitioner's assertion that his unexhausted claims "relate back" to, and share a "common core of operative facts" with, his exhausted claims. (ECF No. 12, at 12). On February 20, 2013, Petitioner filed a FAP within the forty-five days ordered by Judge Sammartino and requested a stay under Rhines. (ECF Nos. 13, 14). On February 22, 2013, Respondent filed an opposition to Petitioner's motion to stay and abey. (ECF No. 15). While Petitioner appears to have followed the three-step procedure in Kelly by filing a fully-exhausted FAP and asking the court to hold it in abeyance, he nevertheless cited to Rhines and attempted to demonstrate good cause. (ECF No. 14). Petitioner failed to argue for a stay under Kelly as instructed by Judge Sammartino.
On June 21, 2013, Petitioner filed a SAP containing allegedly fully-exhausted claims. (ECF No. 16). On July 3, 2013, Respondent moved to dismiss the SAP as untimely and because Respondent claims there is no basis on which to grant Petitioner a stay of proceedings. (ECF No. 17). Respondent also ...