Opinion
No. C 00-2907 VRW (PR), (Docs #36 40)
December 17, 2003
ORDER
Per order filed on May 7, 2003, the court ordered respondent to show cause why a writ of habeas corpus should not be granted in response to petitioner's petition for a writ of habeas corpus containing claims of improper admission of evidence, ex post facto violations, insufficiency of the evidence and various instances of ineffective assistance of counsel.
After seeking and obtaining an extension of time, respondent instead moved to dismiss the petition for failure to exhaust state judicial remedies as to all claims. Respondent specifically argues that petitioner has not exhausted his claim that counsel's failure to raise constitutional objections to the admission of propensity evidence constituted ineffective assistance of counsel.
Per order filed on October 7, 2003, the court instructed petitioner to file an opposition, or statement of non-opposition, and advised him that, under the law of the circuit, he has three options if his petition contains both exhausted and unexhausted claims: (1) dismiss the petition and return to state court to exhaust the unexhausted claims; (2) delete the unexhausted claims and proceed with the exhausted claims only; 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 newly-exhausted claims. Oct 7, 2003 Order at 1 (citingFord v Hubbard. 330 F.3d 1086, 1097-1102 (9th Cir 2003)). The court further advised petitioner that if he concedes that his petition contains both exhausted and unexhausted claims, he should elect one of these three options and promptly inform the court in writing.
Petitioner has now filed a response conceding that he has not exhausted one of his claims, and requesting that the court allow him to amend the petition to delete the unexhausted claim and hold the amended petition in abeyance pending exhaustion of the unexhausted claim. As he puts it, he "has decided on option number three."
In Kelly v Small 315 F.3d 1063 (9th Cir 2003), the Ninth Circuit stated that the "exercise of discretion to stay the federal proceeding is particularly appropriate when an outright dismissal will render it unlikely or impossible for the petitioner to return to federal court within the one-year limitation period imposed by the [AEDPA]." 315 F.3d at 1070. And in its recent amendment of its opinion in Ford, the court added that a denial of a request to stay the federal proceeding "would likely constitute error" where, as here, the petitioner cannot exhaust all of his claims and return to federal court within the applicable one-year limitation period. Ford. 330 F.3d at 1099. In short, it "would likely" be an abuse of discretion to deny a stay under the circumstances of this case. See id at 1099-1100.
In view of the Ninth Circuit's recent statements regarding the appropriateness of a stay in cases such as this one, and in the interest of justice, the court STRIKES petitioner's unexhausted ineffective assistance of counsel claim and STAYS the petition pending exhaustion of said claim. In sum, respondent's motion to dismiss (doc # 36) is GRANTED and petitioner's motion for "a stay" (doc # 40) is GRANTED.
The clerk is instructed to ADMINISTRATIVELY CLOSE the case. Nothing further will take place in this matter until petitioner exhausts the unexhausted claim, and, within 30 days thereafter, moves to reopen the case, lift the court's stay and amend the stayed petition to add the exhausted claim.
SO ORDERED.