Opinion
No. C 03-3447 MMC (PR)
August 8, 2003
ORDER STAYING HABEAS PETITION; GRANTING LEAVE TO AMEND; INSTRUCTIONS TO CLERK
Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee.
BACKGROUND
In 2000, petitioner was convicted in Alameda County Superior Court of two counts of first degree murder with special circumstances, and use of a firearm. He received a sentence of life without the possibility of parole plus twenty-five years to life in state prison. The California Court of Appeal affirmed, and petitioner's appeal to the Supreme Court of California was denied. Petitioner has not filed a habeas petition in the state courts.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).
B. Legal Claims
Petitioner's only claim, as alleged in the petition, is that his constitutional rights were violated when the prosecution used peremptory challenges to exclude all of the African-Americans from the jury. Liberally construed, this claim asserts a cognizable constitutional violation that may establish the basis for habeas relief
Petitioner requests a stay of his petition while he exhausts two new claims by presenting them to the California Supreme Court, specifically, that he received ineffective assistance of counsel and that there was insufficient evidence to find him guilty beyond a reasonable doubt. See 28 U.S.C. § 2254 (b)-(c). A district court may stay a petition pending a petitioner's exhaustion of additional claims, with the intention of allowing an amendment after exhaustion to add the newly exhausted claims. See Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2003); Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 989 (9th Cir. 1998). A stay is appropriate in the instant case because the one-year limitations period appears to be close to expiration, and any newly filed habeas petition in this court would likely be untimely. See Ford v. Hubbard, 305 F.3d 875, 885-86 (9th Cir. 2002) (requiring district court to grant petitioner's request to stay petition pending exhaustion of unexhausted claims where later-filed federal petition would be barred as untimely). Accordingly, petitioner's request for a stay is GRANTED, subject to the conditions set forth below, and this action is hereby STAYED until thirty days after the California Supreme Court's final decision on petitioner's ineffective assistance of counsel and insufficient evidence claims.
Once the California Supreme Court has issued a decision on petitioner's ineffective assistance of counsel and insufficient evidence claims, petitioner shall promptly notify the Court and serve notice on respondent. Within thirty days of such decision, petitioner may file an amended petition containing the two newly exhausted claims. If petitioner chooses to file an amended petition, he must include the caption and civil case number used in this order (No. C-03-3447 MMC (PR)) and the words FIRST AMENDED PETITION on the first page, and petitioner may not incorporate material from the original petition by reference.
If petitioner wishes to have this court consider his ineffective assistance of counsel and insufficient evidence claims in an amended petition he must properly present these claims to the Supreme Court of California within thirty days of the date this order is filed, and thereafter file a first amended petition in this Court within thirty days of the California Supreme Court's decision. If petitioner fails to do so, this matter shall proceed on petitioner's petition containing the sole claim described above, and the Court will not consider petitioner's other claims.
The clerk shall administratively close the file pending the stay of this action.
IT IS SO ORDERED.