Opinion
No. C 02-1332 CRB (PR)
January 30, 2003
ORDER
Per order filed on July 2, 2002, the court found that the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254 stated three cognizable claims for relief — (1) ineffective assistance of counsel ((a) counsel's advice that petitioner drop his plea of not guilty by reason of insanity, and (b) counsel's failure to request a jury instruction); (2) improper jury instructions; and (3) prosecutor misconduct — and ordered respondent to shown cause why a writ of habeas corpus should not be granted.
Respondent instead moved to dismiss the petition on the ground that petitioner has failed to exhaust state judicial remedies as to all claims other than his claim that counsel was ineffective for failing to request a jury instruction to the effect that a cocaine-induced psychosis can negate implied malice (claim (1)(b)). Respondent also made clear in his motion that because petitioner's time for filing a new federal habeas petition expired on June 14, 2002, under the law of the circuit, he must be given three options: (1) dismiss the petition and return to state court to exhaust the unexhausted claims; (2) delete the unexhausted claims and proceed with the exhausted claim; or (3) amend the petition to dismiss the unexhausted claims, move to stay the amended petition, exhaust the unexhausted claims and then move to amend the stayed petition to add the exhausted claims. See Ford v. Hubbard, 305 F.3d 875, 882-86 (9th Cir. 2002).
Petitioner has filed a response conceding that he has not exhausted most of his claims and stating, "Your Honor I choose dismiss my petition and return to state court, so that I can exhaust my unexhausted claims as well as a few more that I've done research on." However, he also requests "an adequate amount of time" to file in state court and return to federal court. Because option (1) would preclude petitioner from returning to federal court (any petition filed after June 13, 2002 would be presumptively time-barred), the court will liberally construe petitioner's response as choosing option (3), the only option under which he may return to federal court with all of his claims. And, in the interest of justice, the court STRIKES all claims other that claim (1)(b) and STAYS the petition pending exhaustion of petitioner's unexhausted claims.Accord id. at 884-85 (noting in dicta that granting a stay is the only appropriate remedy' where an outright dismissal could jeopardize the timeliness of a federal petition, and that denying a stay under such circumstances "would likely constitute error").
In sum, respondent's motion to dismiss (doc # 9) is GRANTED, the petition is STAYED, and the case is ADMINISTRATIVELY CLOSED. Nothing further will take place in this matter until petitioner exhausts the unexhausted claims, and moves to reopen the case, lift the courts stay and amend the stayed petition to add the exhausted claims.
SO ORDERED.