ORDER: (1) ADOPTING REPORT AND RECOMMENDATION, (2) GRANTING MOTION TO DISMISS SECOND AMENDED PETITION, AND (3) DENYING AS MOOT MOTION TO STAY (Doc Nos. 14, 17, 18).
JANIS L. SAMMARTINO, District Judge.
Presently before the Court is Magistrate Judge McCurine's report and recommendation ("R&R") advising the Court to dismiss with prejudice Michael Andrew Paris's ("Petitioner") Petition for Writ of Habeas Corpus by a Person in Custody ("Petition"). (R&R, ECF No. 18.) Also before the Court are Petitioner's objections to the R&R. (Objs., ECF No. 19). After careful consideration of the facts and law, the Court OVERRULES Petitioner's objections, ADOPTS the R&R, DISMISSES the Second Amended Petition ("SAP") WITH PREJUDICE, and DENIES AS MOOT Petitioner's request that this Court stay his First Amended Petition ("FAP").
Magistrate Judge McCurine's R&R contains a thorough and accurate recitation of the factual and procedural history underlying the instant motion. (R&R 2-5, ECF No. 18.) This Order incorporates by reference the background as set forth in the Procedural Background section of the R&R, and briefly summarizes the most relevant facts here.
Petitioner, a state prisoner, filed his Petition on July 29, 2010. (Pet ., ECF No. 1.) In his Petition, Petitioner claimed a denial of hisSixth Amendment rights due to ineffective assistance of counsel and a denial of his Fifth Amendment right to not testify against himself because of prosecutorial misconduct. ( Id. at 14-27.) On October 8, 2010, Respondent filed an Answer, contending that Petitioner failed to completely exhaust his claims in state court. (Answer 12-38, ECF. No. 6.) Petitioner filed a Traverse to Petition on November 8, 2010. (Trav., ECF No. 8.)
On December 7, 2011, Magistrate Judge McCurine issued an R&R finding that Petitioner failed to exhaust his Sixth Amendment claims and advising the Court to dismiss the petition without prejudice in order to allow Petitioner either to amend and move forward without the unexhausted claims, or to return to state court and exhaust such claims if possible. (R&R 12-13, ECF No. 10.) Petitioner objected to the R&R on January 4, 2012. (Objs., ECF No. 11). On January 7, 2013, after considering both the first R&R and Petitioner's objections, this Court ultimately adopted the R&R in full and dismissed the Petition without prejudice. (Order, ECF No. 12.) The Court granted Petitioner forty-five days in which to file an amended petition excluding the unexhausted claims. ( Id. at 13.)
On February 20, 2013, Petitioner filed a FAP, which asserted only his exhausted Fifth Amendment claim. (FAP, ECF No. 13.) On the same day, Petitioner also filed a motion to stay his FAP. (Mot. to Stay, ECF No. 14.) On February 22, 2013, Respondent filed an opposition to Petitioner's motion to stay. (Resp. in Opp'n, ECF No. 15.) Petitioner did not file a reply.
On June 21, 2013, Petitioner filed a SAP, which reasserted his allegedly newly exhausted Sixth Amendment claims. (SAP, ECF No. 16.) On July 3, 2013, Respondent moved to dismiss Petitioner's SAP. (Mot. to Dismiss ("MTD"), ECF No. 17.) Petitioner did not respond to the MTD. On August 8, 2013, Magistrate Judge McCurine issued an R&R finding that Petitioner's Sixth Amendment claims were neither timely nor related back, and recommending that this Court dismiss Petitioner's SAP with prejudice. (R&R, ECF No. 18.) On September 4, 2013, Petitioner filed objections to the R&R. (Objs., ECF No. 19.) Respondent did not reply.
1. Review of the Report and Recommendation
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth a district court's duties regarding a magistrate judge's report and recommendation. The district court "shall make a de novo determination of those portions of the report... to which objection is made, " and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 673-76 (1980). In the absence of a timely objection, however, "the Court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72 advisory committee's note (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)).
2. Cognizable Claim for Relief
Under federal law, a prisoner seeking relief on claims related to imprisonment may file a petition for habeas corpus pursuant to 28 U.S.C. § 2254. A federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal intervention in state court proceedings is only justified when there are errors of federal law. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989). Federal habeas courts are bound by a state's interpretation of its own laws. Estelle v. McGuire, 502 U.S. 62, 68 (1991).
The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs federal habeas petitions filed after April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). AEDPA establishes a "highly deferential standard for evaluating state-court rulings, " requiring "that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). A federal court can grant habeas relief only when the result of a claim adjudicated on the merits by a state court "was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States, " or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's decision is "contrary to" clearly established federal law if it (1) applies a rule that contradicts governing Supreme Court authority, or (2) "confronts a set of facts that are materially indistinguishable from" a Supreme Court decision but reaches a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (internal quotation marks omitted) (citation omitted). An "unreasonable" application of precedent "must have been more than incorrect or erroneous"; it "must have been objectively unreasonable.'" Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Further, even if a reviewing federal court determines a constitutional error has occurred, relief is only authorized if the petitioner can show that the "error had a substantial and injurious effect" on his conviction or sentence. Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000).
3. Exhaustion of Claims
A petitioner must exhaust available state remedies as a prerequisite to a federal court's consideration of claims presented in a habeas corpus proceeding. 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971). If the petitioner has not exhausted the available state remedies, he must show that there is an absence of available state corrective process or that circumstances exist that render such process ineffective to protect his rights. 28 U.S.C. § 2254(b)(I), (ii). Exhaustion is accomplished if the state's highest court had an opportunity to rule on the merits of the claim. Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982). The petitioner is required to "provide the state courts with a fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson v. Harless, 459 U.S. 4, 6 (1982) (quoting Picard, 404 U.S. at 276-77). Also, the petitioner must have "fairly presented' to the state courts the substance' of his federal habeas corpus claim." Id. at 6 (quoting Picard, 404 U.S. at 275, 277-78).
A petitioner must develop "the material facts underlying [the] portion of his ineffective assistance of counsel claim in state court, " or "demonstrate adequate cause for his or her failure [to develop those facts] and actual prejudice resulting from that failure." Correll v. Stewart, 137 F.3d 1404, 1411-12 (9th Cir. 1997). "It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made." Anderson, 459 U.S. at 6 (citing Picard, 404 U.S. at 277). Instead, the petitioner must "present the state courts with the same claim he urges upon the federal courts." Picard, 404 U.S. at 276. To be fairly presented, and therefore exhausted, a petition to the Supreme Court of California cannot present a claim by incorporating by reference arguments from lower courts. Kibler v. Walter, 220 F.3d 1151, 1151 (9th Cir. 2000). Further, Kibler expresses that claims must be made to the reviewing court in either the petition or answer, and must be made "with specificity." Id.
Petitioner claims that he was denied effective assistance of counsel under the Sixth Amendment. (SAP 18-30, ECF No. 16-1.) Petitioner breaks this claim into five sub-claims:
a. The failure by trial counsel to interview or investigate witness Matthew McClure and call him at trial as a defense witness... b. The failure by trial counsel to interview or investigate witness Dontaye Craig and call him at trial as a defense witness... c. Trial counsel's failure to investigate or adequately prepare for trial... d. [T]rial counsel[s failure] to object to inadmissible and prejudicial testimony of the prosecution's gang expert... [and e.]... [T]rial counsel[s failure] to object to the admission of the tape recorded conversation with William Trice.
( Id. at i.)
1. Summary of R&R's Conclusions
Magistrate Judge McCurine determined that Petitioner is not entitled to a stay-and-abeyance under Rhines,  because this Court's January 7, 2013 Order found Petitioner to lack good cause, and Petitioner's motion to stay failed to raise any additional arguments for good cause. (R&R 8, ECF No. 18.)
The magistrate judge then generously evaluated Petitioner's SAP under the Kelly withdrawal-and-abeyance procedure, despite Petitioner's failure to request a stay under Kelly. Magistrate Judge McCurine first noted that Petitioner's FAP and SAP were filed after the AEDPA statute of limitations had run. ( Id. at 9.) Second, the magistrate judge found that Petitioner was not entitled to statutory tolling, because "Petitioner did not attempt to exhaust his ...