United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATION
ALLISON CLAIRE, Magistrate Judge.
Petitioner is a state prisoner who proceeds through counsel in this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Pending before the court is petitioner's motion to stay and abey his petition (ECF 14), and petitioner's reply (ECF recommends that petitioner's motion for a stay be granted.
I. Procedural History
Petitioner and his co-defendant Aaron Ouellette were convicted following a jury trial in the Sutter County Superior Court of first degree murder; robbery; participation in a criminal street gang; and simple assault. The jury also found true the special circumstance that the murder was committed during the course of a robbery. Petitioner was sentenced to life without parole for the first degree murder count, with the remaining penalties stayed under California Penal Code § 654.
The California Court of Appeal affirmed the convictions on August 10, 2012. ECF No. 1-4 at 7-41 (direct appeal opinion). A petition for review was denied by the California Supreme Court on November 14, 2012. ECF No. 1-4 at 47.
A habeas petition concurrently filed with petitioner's direct appeal in the California Court of Appeal was denied without prejudice to refilling it in the trial court after disposition of his pending appeal. See ECF No. 1-4 at 5 (California Court of Appeal docket sheet). Following the court's direction, petitioner subsequently filed a state habeas petition in the Sutter County Superior Court on November 13, 2013 raising three separate challenges to the effectiveness of his trial counsel. See Lodged Doc. No. 7. On November 25, 2013, that petition was denied in a one page order finding that counsel's challenged conduct would not have changed the outcome at trial. See Lodged Doc. No. 8. Petitioner next filed this same habeas petition in the California Court of Appeal on December 20, 2013. See Lodged Doc. No. 9. It was denied in a postcard denial on January 9, 2014. See Lodged Doc. No. 10. Lastly, petitioner filed a state habeas corpus petition in the California Supreme Court on January 15, 2014. See Lodged Doc. No. 11. That petition remains pending in the California Supreme Court. See Lodged Doc. No. 12 (California Supreme Court docket sheet).
On January 10, 2014, petitioner, through counsel, filed a federal habeas corpus petition raising various claims of jury instructional error, sufficiency of the evidence challenges, and ineffective assistance of trial counsel claims. ECF No. 1-2 (Points and Authorities in Support of Petition for Writ of Habeas Corpus).
II. Motion for a Stay
Contemporaneously with the filing of the instant habeas petition, counsel for petitioner filed a motion to hold the petition in abeyance pending the exhaustion of his ineffective assistance of trial counsel claims in the California Supreme Court. ECF Nos. 1-5; 3 at 2-4. The motion itself does not specify whether petitioner is seeking a stay pursuant to Rhines v. Weber , 544 U.S. 269 (1995), or Kelly v. Small , 315 F.3d 1063 (9th Cir. 2003). Petitioner's reply to respondent's opposition further confuses these two distinct methods for obtaining a stay without actually citing to either case. Compare ECF No. 15 at 3 (citing Wooten v. Kirkland , 540 F.3d 1110 (9th Cir. 2008) and the three-prong standard for obtaining a stay developed in Rhines) with ECF No. 15 at 4 (stating that "[p]etitioner agrees with respondent that the three unexhausted claims must be dismissed... until... exhausted and then re-combined into a single Second Amended Petition" which amounts to a stay pursuant to Kelly). Accordingly, the court must explain both procedural mechanisms and then determine, without any assistance from petitioner's counsel, whether the standard for either one has been met.
III. Opposition to a Stay
On February 11, 2014, respondent filed an opposition to the motion for a stay arguing that the petition as a whole should be dismissed without prejudice as a mixed petition or amended to delete the unexhausted claims. ECF No. 13 at 1. Respondent contends that the entire habeas petition is prematurely filed because it contains three unexhausted ineffective assistance of counsel claims. Id. at 4. With respect to the request for a stay, respondent asserts that petitioner cannot establish good cause pursuant to Rhines v. Weber , 544 U.S. 269 (2005), because there is no explanation for petitioner's twelve month delay in filing his first state habeas petition following the end of direct review. Id. at 5. Respondent insists that all of petitioner's claims "were based on either the trial court record or information available to petitioner before trial or shortly thereafter." Id . For all these reasons, respondent requests that the motion for a stay be denied.
IV. Governing Legal Principles
Habeas petitioners are required to exhaust state remedies before seeking relief in federal court. 28 U.S.C. § 2254(b). The exhaustion doctrine ensures that state courts will have a meaningful opportunity to consider allegations of constitutional violation without interference from the federal judiciary. Rose v. Lundy , 455 U.S. 509, 515 (1982). Exhaustion requires fair presentation of the substance of a federal claim to the state courts. Picard v. Connor , 404 U.S. 270, 276, 278 (1971). In order to exhaust state remedies, a federal claim must be presented to the state's highest court which is the California Supreme Court. Castille v. Peoples , 489 U.S. 346 (1989).
Federal district courts may not adjudicate petitions for habeas corpus which contain both exhausted and unexhausted claims. Rose , 455 U.S. at 518-19. However, that does not mean that a mixed petition must be dismissed. After the enactment of the AEDPA and its creation of a one year statute of limitations for filing federal habeas petitions in 1996, the Supreme Court recognized the procedural trap that is created by the total exhaustion rule. "As a result of the interplay between AEDPA's 1-year statute of limitations and Lundy's dismissal requirement, petitioners who come to federal court with mixed' petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims." Rhines , 544 U.S. at 275. Therefore, pursuant to Rhines , 544 U.S. at 277-78, a federal petition containing both exhausted and unexhausted claims may be stayed only if (1) ...