United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, District Judge.
Petitioner is a state prisoner, proceeding without counsel and in forma pauperis. Petitioner filed an application for petition of writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss the habeas petition because petitioner failed to exhaust his fifth claim, and petitioner's motion for stay and abeyance under Rhines v. Weber , 544 U.S. 269 (2005). For the reasons set forth below, the undersigned recommends that petitioner's motion for stay be denied, and that respondent's motion be partially granted.
II. Legal Standards
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...." Id . The Court of Appeals for the Ninth Circuit has referred to a respondent's motion to dismiss as a request for the court to dismiss under Rule 4 of the Rules Governing § 2254 Cases. See, e.g., O'Bremski v. Maass , 915 F.2d 418, 420 (1991). Accordingly, the court will review respondent's motion to dismiss pursuant to its authority under Rule 4.
1. On July 1, 2010, in Plumas County Superior Court, petitioner was convicted of second degree murder, and a sentencing allegation that petitioner personally discharged a firearm, resulting in great bodily injury or death, was found true. (Respondent's Lodged Documents ("LD") 1, 3.)
2. On August 19, 2010, petitioner was sentenced to an indeterminate term of 40 years to life in state prison (15 years to life on the murder count, and 25 years to life for the sentencing allegation). (LD 1.)
3. Petitioner appealed his conviction to the California Court of Appeal, Third Appellate District. (LD 2.) On January 27, 2012, the state appellate court affirmed the convictions and modified the sentence to an indeterminate sentence of twenty-five years to life. (LD 3.)
4. Petitioner, through counsel, filed a petition for review in the California Supreme Court on February 8, 2012. (LD 5.) Petitioner's grounds four, six, and seven were included in the petition for review. (Id.) On April 18, 2012, the California Supreme Court denied review without comment. (LD 6.)
5. On June 4, 2012, the Plumas County Superior Court filed an Amended Abstract of Judgment. (LD 4.)
6. On July 28, 2013, under the mailbox rule,  petitioner filed a pro se petition for writ of habeas corpus in the California Supreme Court. (LD 7.) Petitioner's grounds one, two and three were included in this pro se petition. (Id.) On October 16, 2013, the California Supreme Court denied the petition. (LD 8.)
7. On November 25, 2013, under the mailbox rule, petitioner filed the instant federal petition. (ECF No. 1.)
8. On March 4, 2014, respondent filed a motion to dismiss the mixed petition based on petitioner's failure to exhaust claim five. On May 6, 2014, the court issued an order explaining petitioner's options for seeking a stay under Rhines or ...