Opinion
No. C 03-0607 CRB (PR), (Doc # 6)
September 5, 2003
ORDER
Per order filed on July 31, 2003, the court found that the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254 stated several colorable claims for relief, including instructional error, juror misconduct and ineffective assistance of trial and appellate counsel, and ordered respondent to show 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 of instructional error (specifically his claim that it was error to instruct the jury with CALJIC No. 17.41.1). Respondent also made clear in his motion that petitioner should be given the option of amending the petition to delete unexhausted claims or accepting dismissal without prejudice to pursuing the unexhausted claims in state court, and that he should be advised that the court may allow amendment of the mixed petition to delete unexhausted claims and hold the exhausted petition in abeyance pending exhaustion, and then possibly allow amendment to add the then-exhausted claims. Accord Ford v. Hubbard. 330 F.3d 1086, 1097-1102 (9th Cir. 2003).
Petitioner has filed a response conceding that he has not exhausted most of his claims, and requesting that the court allow him to amend the petition to delete the unexhausted claims and hold the amended petition in abeyance pending exhaustion of the unexhausted claims. Respondent opposes a stay despite its admission that the unexhausted claims will be untimely without it because the applicable one-year limitation period expired on or about May 21, 2003.
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 all claims other than petitioner's instructional error claim and
STAYS the petition pending exhaustion of petitioner's unexhausted claims.
In sum, respondent's motion to dismiss (doc # 6) 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, within 30 days thereafter, moves to reopen the case, lift the court's stay and amend the stayed petition to add the exhausted claims.
SO ORDERED.