Opinion
No. C 11-04709 CW (PR).
October 26, 2011
Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner also has filed a motion to stay the petition while he exhausts his ineffective assistance of counsel claims in state court.
A district court may stay a mixed habeas petition, i.e., a petition containing both exhausted and unexhausted claims, to allow the petitioner to exhaust state court remedies as to those claims that have not yet been presented to the state's highest court. See Rhines v. Webber, 544 U.S. 269, 277-78 (2005). InRhines, the Supreme Court discussed the stay-and-abeyance procedure, explaining that a stay and abeyance "is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court," the claims are not meritless, and there are no intentionally dilatory litigation tactics by the petitioner. Id. If the stay is granted, the petitioner does not have to worry that his newly-exhausted claims will be barred by the statute of limitations because those claims remain pending in federal court.King v. Ryan, 564 F.3d 1133, 1139, 1140 (9th Cir. 2009).
Here, it appears that good cause exists for Petitioner's failure to exhaust his claims of ineffective assistance of trial and appellate counsel on direct appeal because such claims must be raised by way of state habeas corpus. Moreover, the claims state cognizable bases for federal habeas relief. Further, this is Petitioner's first habeas petition, and there is no evidence that he seeks the stay for improper purposes. Accordingly, the Court GRANTS Petitioner's request for a stay.
These proceedings are hereby STAYED pending Petitioner's exhaustion of his state judicial remedies. Nothing further will take place in this action until the Court decides further action is appropriate or until Petitioner exhausts the unexhausted claims and, within thirty days of doing so, moves to reopen this action and lift the stay.
Petitioner's motion for leave to proceed in forma pauperis is GRANTED.
The Clerk of the Court shall ADMINISTRATIVELY CLOSE the file pending the stay of this action.
This Order terminates Docket nos. 2 and 3.
IT IS SO ORDERED.