United States District Court, S.D. California
REPORT AND RECOMMENDATION RE: PETITIONER'S MOTION FOR STAY AND ABEYANCE
BERNARD G. SKOMAL, Magistrate Judge.
Petitioner Robert Miranda Calderon ("Calderon"), a state prisoner proceeding pro se, filed a fully exhausted Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. Before the Court is Calderon's Motion for Stay and Abeyance ("Motion") of his Petition. Calderon wishes to raise new claims that have not yet been exhausted, so he requests a stay of the presently filed Petition and time to subsequently amend his petition once the new claims are exhausted. Respondent has opposed the Motion, arguing a stay should not be granted because the Petition does not contain unexhausted claims and therefore there is no basis to stay the proceedings. For the reasons outlined below, this Court recommends that the Motion be GRANTED pursuant to Kelly v. Small  and the Petition be stayed and held in abeyance pending exhaustion of state remedies.
II. PROCEDURAL BACKGROUND
On December 13, 2010, a jury convicted Calderon of the following five counts: (1) "three counts of assault with a semiautomatic firearm on Jorge Castaneda, Jeffrey Jensen, and Javier Carrillo" (Penal Code § 245(b); (2) robbery of Jeffrey Jensen (Penal Code § 211); and (3) "attempted murder of Javier Carrillo" (Penal Code §§ 664, 187(a). (Lodgment 2.) On April 8, 2011, the trial court sentenced Calderon to a determinate term of 11 years, 4 months plus an indeterminate term of 25 years to life. ( Id. )
On April 28, 2011, Calderon appealed his conviction contending the trial court erred by: "(1) denying his motion to exclude the witnesses' photographic lineup identification; (2) excluding his proposed identification expert; (3) instructing the jury on attempted voluntary manslaughter; (4) excluding him from a future restitution hearing; (5) imposing a booking fee; and (6) determining the court security fee." (Lodgment 3 at 166; Lodgment 6.) On December 19, 2012, the Fourth District California Court of Appeal, Division One modified the judgment to strike the court security fee of $1, 200 and insert the correct fee amount of $200, but affirmed the trial court's judgment in all other respects. (Lodgment 6.) Subsequently, on January 30, 2013, Calderon filed a petition for review in the California Supreme Court. (Lodgment 7.) The California Supreme Court denied the petition without opinion on March 15, 2013. (Lodgment 8.)
On March 12, 2014, Calderon filed a federal Petition for Writ of Habeas Corpus on the grounds previously raised on direct appeal. (Doc. No. 1.) Calderon asserts that his state and constitutional rights were violated when the trial court: (1) denied his motion to exclude the witnesses' photographic lineup identification; (2) excluded his proposed identification expert; and (3) instructed the jury on attempted voluntary manslaughter. (Doc. No. 1.) Subsequently, on April 15, 2014, Calderon filed a Petition for Writ of Habeas Corpus with the California Supreme Court asserting ineffective assistance of trial and appellate counsel. (Lodgment 9.) This state habeas petition remains pending. (Lodgment 10.)
On May 2, 2014, Calderon filed the instant Motion for Stay and Abeyance. (Doc. No. 7.) Calderon asks the Court to stay and hold his Petition in abeyance while he proceeds with his state petition to exhaust his ineffective assistance of trial and appellate counsel claims. ( Id. ) Moreover, Calderon seeks the Court's permission to include these new claims once exhausted in a First Amended Petition. ( Id. )
Exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims presented in a habeas corpus proceeding. 28 U.S.C.A. § 2254(b) (West 2006); Rose v. Lundy, 455 U.S. 509, 522 (1982). The exhaustion doctrine requires a habeas petitioner to exhaust state court remedies by providing the state courts with the opportunity to consider and resolve his federal constitutional claims before presenting these claims to a federal court. See McKinney v. Ryan, 730 F.3d 903, 910 (9th Cir. 2013); see also Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002) (finding that a petitioner must exhaust all available state remedies, either through direct appeal of his conviction or through collateral proceedings). In most instances, a petitioner can exhaust state court remedies by "fairly represent[ing]" his federal claims to the highest state court available. David v. Silva, 511 F.3d 1005, 1008 (9th Cir. 2008) (citing Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999) (stating a petitioner can provide the state's highest court with the opportunity to consider each claim before presenting it to the federal court)). Fair presentation of the legal basis of a claim requires a petitioner to alert the state courts that he is asserting a federal claim. Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005). In the Ninth Circuit, a petitioner must make the basis of his claims "explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law." Id.
Respondent concedes that all three claims presently in Calderon's Petition have been fully exhausted in the California state courts. (Doc. No. 10.) Once Calderon's conviction became final on December 13, 2010, Calderon pursued a direct appeal of the three claims in the Fourth District California Court of Appeal, Division One. (Lodgment 6.) Subsequently, Calderon sought direct review of the three claims in the California Supreme Court. (Lodgment 7.) Calderon provided the state courts with both the factual and legal bases of each claim included in his Petition. (Lodgment 3, 7.) With respect to claim one, Calderon explicitly states the "admission of the pre-trial and in-court identification violated his right to due process of law" pursuant to the 14th Amendment of the United States constitution. (Doc. No. 1 at 22.) For claim two, Calderon states the trial court prejudicially erred in excluding his proposed identification expert and this violated his federal right "to present a complete defense and due process of law" pursuant to the 5th, 6th, and 14th Amendments of the United States constitution. (Doc. No. 1 at 29.) Lastly, under claim three, Calderon alleges the "trial court improperly instructed the jury on the law of attempted voluntary manslaughter, " which violated his constitutional rights to due process and a fair trial pursuant to the 5th and 14th Amendments of the United States constitution. (Doc. No. 1 at 33.) Thus, Calderon fairly presented the legal bases of his three claims by alerting the state courts to the federal nature of the claims. Accordingly, Calderon fairly and fully presented all three claims to the California Supreme Court on direct appeal and has fully exhausted the three claims in his Petition.
B. Stay and Abeyance
A federal district court has the discretion to stay and hold in abeyance a petition that contains only exhausted claims. Scott v. Lewis, No. 11-3128, 2013 WL 2951042, at *1 (N.D. Cal. June 14, 2013) (citing Calderon v. U.S. Dist. Court for N. Dist. of Cal., 144 F.3d 618 (9th Cir. 1998)). District courts have applied Kelly not only to stay mixed petitions, but also to stay and hold in abeyance fully exhausted petitions. Broadnax v. Cate, No. 12CV560 GPC RBB, 2012 WL 5335289, at *5 (S.D. Cal. Oct. 26 2012) (citing Sims v. Calipatria State Prison, CV 10-715-DSF (AGR), 2012 WL 1813113 (C.D. Cal. Feb. 29, 2012) report and recommendation adopted, CV 10-715-DSF AGR, 2012 WL 1820914 (C.D. Cal. May 18, 2012) (finding Kelly as the appropriate standard to follow to stay a fully exhausted petition and allow a petitioner to exhaust additional claims in state court); Hughes v. Walker, No. 2:10-CV-3024 WBS TJB, 2012 WL 346449, at *9 (E.D. Cal. Jan. 4, 2012) (holding that a court can stay a fully exhausted petition under Kelly while a petitioner seeks to exhaust new claims). Here, Calderon's Petition contains only exhausted claims; therefore, the Petition is not mixed. See Rose, 455 U.S. at 510. Calderon, however, seeks to stay and hold his fully exhausted Petition in abeyance in ...