United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Petitioner consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
This action is proceeding on the original petition filed April 25, 2014. Petitioner concedes that his petition contains unexhausted claims, known as a "mixed" petition, and seeks to stay this case pending exhaustion of his state court remedies. Petitioner claims that grounds one and two are exhausted, and grounds three and four are not exhausted. Petitioner filed grounds three and four in the San Joaquin County Superior Court on April 9, 2014. (ECF No. 2 at 5.)
Pending before the court is petitioner's request to stay this action pending exhaustion of grounds three and four under Rhines v. Weber , 544 U.S. 269, 276 (2005). For the following reasons, the court grants the motion for stay.
II. Motion to Stay
A. Stay and Abeyance Procedures
Two procedures are available to federal habeas petitioners who wish to proceed with exhausted and unexhausted claims for relief. The "Kelly procedure, " outlined in Kelly v. Small , 315 F.3d 1063 (9th Cir. 2003), has been described by the Ninth Circuit Court of Appeals to involve the following three-step process:
(1) petitioner amends his petition to delete any unexhausted claims, (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted claims, and (3) petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition.
King v. Ryan , 564 F.3d 1133, 1135 (9th Cir. 2009). A petitioner who proceeds under Kelly will be able to amend his petition with newly exhausted claims if they are timely under the statute of limitations governing the filing of federal habeas petitions. If a petitioner's newly-exhausted claims are untimely, he will be able to amend his petition to include them only if they share a "common core of operative facts" with the claims in the original federal petition. In this regard, the Kelly procedure, unlike the alternative procedure discussed below, is a riskier one for a habeas petitioner because it does not protect a petitioner's unexhausted claims from expiring during a stay and becoming time-barred. See King , 564 F.3d at 1140-41; see also Duncan v. Walker , 533 U.S. 167, 172-75, (2001) (unlike the filing of a state habeas petition, the filing of a federal habeas petition does not toll the statute of limitations).
As the Ninth Circuit explained in King, the United States Supreme Court has authorized a second procedure for pursuing both exhausted and unexhausted claims, set forth in Rhines , 544 U.S. at 277. Under the Rhines procedure, the petitioner may proceed on a "mixed petition, " i.e., one containing both exhausted and unexhausted claims, and his unexhausted claims remain pending in federal court while he returns to state court to exhaust them. See King , 564 F.3d at 1140; Jackson v. Roe , 425 F.3d 654, 660 (9th Cir. 2005) ("Rhines concluded that a district court has discretion to stay a mixed petition to allow a petitioner time to return to state court to present unexhausted claims.").
A petitioner who proceeds under Rhines can, in many instances, avoid a statute of limitations problem with respect to his unexhausted claims. See King , 564 F.3d at 1140. However, the requirements are more stringent for the granting of a stay under Rhines, as compared to Kelly. The Supreme Court has cautioned that a "stay and abeyance [under the Rhines procedure] should be available only in limited circumstances, " and "district courts should place reasonable time limits on a petitioner's trip to state court and back." Rhines , 544 U.S. at 277-78. District courts should not grant a stay under Rhines if the petitioner has engaged in abusive litigation tactics or intentional delay, or if the unexhausted claims are plainly meritless. Id. at 278. Further, under Rhines, "stay-and-abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.'" King , 564 F.3d at 1139 (quoting Rhines , 544 U.S. at 277-78).
The decisions in both Kelly and Rhines "are directed at solving the same problem - namely, the interplay between AEDPA's one-year statute of limitations and the total exhaustion requirement first articulated in Rose ...