ORDER STRIKING UNEXHAUSTED CLAIM
ORDER GRANTING PETITIONER'S MOTION FOR STAY AND ABEYANCE [Doc. 1] ORDER
DIRECTING PETITIONER TO FILE STATUS REPORT
SANDRA M. SNYDER, Magistrate Judge.
Petitioner Luis Alberto Valencia ("Petitioner") is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Court refers to the following facts as background only. To the extent that Petitioner provided certain facts only in his prior (dismissed) habeas petition, Petitioner is reminded that a pleading must be "complete in itself without reference to the prior or superseded pleading." Local Rule 220.
State Court Proceedings
On September 7, 2010, a jury convicted Petitioner of first degree murder (Cal. Penal Code § 187) and kidnapping to extract any valuable thing (§ 209(a)). The jury also found that the murder was committed in the commission or attempted commission of kidnapping (§ 190.2(a)(17)(B)) and during the commission or attempted commission of torture (§ 190.2(a)(18)). The jury also found that Petitioner personally used a firearm (§ 12022.53(b)).
On May 2, 2012, the California Court of Appeal, Fifth Appellate District, affirmed the judgment and sentence. On June 13, 2012, Petitioner filed a Petition for Review with the California Supreme Court (S203268). The petition was denied on the merits on August 8, 2012.
Prior Petition (1:12-CV-01783-LJO-GSA)
On October 31, 2012, Petitioner filed a petition in District Court regarding these convictions. See 1:12-CV-01783-LJO-GSA. On April 3, 2013, Respondent filed a motion to dismiss for failure to exhaust state remedies regarding Petitioner's third claim, alleging a jury instruction error. Petitioner filed an opposition on April 29, 2013, wherein he requested a stay of the proceedings to permit him to exhaust this claim. On May 15, 2013, the Magistrate Judge issued Findings and Recommendations, which the Court adopted on June 25, 2013.
The Court did not find good cause to stay Petitioner's case, and it dismissed his petition without prejudice. The Court found that his petition was "simply premature." Relying in part on Petitioner's representation that his one-year period under AEDPA would lapse on November 8, 2013, the Court explained: "This is not a case where the petitioner has discovered a new claim on the eve of the expiration of the limitations period and files a protective federal petition. By Petitioner's calculations, he still has nearly seven months remaining."
Instant Petition (1:13-cv-1864-LJO-SMS)
On August 13, 2013, Petitioner served a petition for writ of habeas corpus in the California Supreme Court, for the purpose of exhausting his jury instruction claim. See Verification and Proof of Service, Doc. 1 at 19. Petitioner has provided this as an exhibit in his instant federal petition, which he filed before this Court on November 18, 2013.
Along with this petition, he has concurrently filed a motion to stay the petition and hold it in abeyance pending exhaustion of his state remedies. He explains that he is still awaiting a decision from the California Supreme Court on his state habeas petition, and expresses concern that if the filing is found to be procedurally defective, then his petition may not be tolled and he may be unable to file in federal court.
He also gives two reasons for his original failure to exhaust. First, he "miscommunicated with his appeals counsel" and was not aware that his attorney had not presented the claim to the Supreme Court. Second, his prison's law library has a variety of inadequacies. He says he did not learn that his attorney had omitted the jury instruction claim until Respondent made its motion to dismiss his prior petition on April 3, 2013. He now ...