ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOSEPHINE L. STATON, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made. The Court concurs with and accepts the findings and recommendation of the Magistrate Judge.
The Court briefly addresses the arguments raised in the Objections. In his Objections, Petitioner maintains that he filed a "protective writ" "based on. . . possible unexh[au]sted claims that [were] based on issues his appe[llate] attorney refused to investigate, and raise." (Objections at 1-2.)
As an initial matter, Petitioner did not raise this argument in response to Respondent's Motion to Dismiss, which forms the underlying basis for the Report and Recommendation. In fact, Petitioner, who requested and received a 45-day extension (Dkt. Nos. 16-17), did not respond at all to the Motion to Dismiss, instead, raising this new purported issue for the first time in his Objections.
Second, the only grounds for relief raised in the Petition were those previously raised on direct appeal. As the Magistrate Judge noted, Petitioner obtained relief on each of these four claims in state court. Petitioner made no reference to any additional claims in either his Petition or his Motion for Stay. Nor has Petitioner identified these additional claims in his Objections.
Third, to the extent Petitioner maintains that he requested a stay of the proceedings in order to exhaust additional claims that his appellate counsel failed to raise or investigate, Petitioner has mischaracterized his previous filing. The Motion for Stay expressly requested an order staying "the Petition while Petitioner exhaust[ed] grounds one through four [of the Petition] in the state court." (Dkt. No. 7, Motion for Stay, at 2.) The state habeas petition Petitioner lodged in support of his Motion for Stay referenced the same claims raised in the Petition. (See Dkt. No. 10.)1 Again, the state courts have already granted relief to Petitioner on these claims. Thus, granting a motion to stay claims that are moot under such circumstances would be inappropriate.
Finally, to the extent Petitioner had wished to seek a stay to attempt to exhaust new claims not in the Petition, Petitioner never filed a new motion to stay the Petition to exhaust any such new, unidentified claims and in any event, Petitioner has made no showing that he is entitled to a stay under Rhines v. Weber, 544 U.S. 269 (2005) or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) (as amended), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007).
Under Rhines, 544 U.S. at 277-78, courts have the discretion to stay a mixed petition and to hold it in abeyance while a petitioner exhausts his remaining claims in state court, but only in "limited circumstances" where the petitioner can show: (a) he has good cause for his failure to exhaust his claims; (b) the unexhausted claims are potentially meritorious and not "plainly meritless"; and (c) he has not engaged in abusive litigation tactics or intentional delay. Here, Petitioner has failed to provide the Court with any explanation as to why he has failed to exhaust his state court remedies in a timely manner, let alone shown good cause or demonstrated that his unexhausted claims are potentially meritorious and not plainly meritless.
Accordingly, Petitioner is not entitled to a stay under Rhines.
Alternatively, courts may grant a stay under Kelly, but a petitioner will only be allowed to amend newly-exhausted claims back into a federal petition if the claims are timely under the AEDPA or share a "common core of operative facts" with the claims in the pending petition. King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009) (citation omitted). In this case, the new claims would be untimely and would not relate back to the claims in the original Petition.
On the issue of timeliness, because the Petition was filed after the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), it is subject to the AEDPA's one-year statute of limitations, as set forth at 28 U.S.C. § 2244(d). See Campbell v. Henry, 614 F.3d 1056, 1058 (9th Cir. 2010). The one-year limitations period applies to each claim in a habeas petition on an individual basis. Mardesich v. Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). Ordinarily, the AEDPA's one-year limitations period runs from the date on which the prisoner's judgment of conviction "became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Here, the Court finds no basis for applying a later trigger date under 28 U.S.C. 2244(d)(1)(B)-(D), and as such, Section 2244(d)(1)(A) governs in this case.
Petitioner was resentenced on August 28, 2015. Because Petitioner did not file an appeal, his judgment became final on October 27, 2015 — 60 days later — when the time to file an appeal expired. See Cal. R. Ct. 8.308(a); see also Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006). The limitations period expired one year later on October 27, 2016. Because Petitioner constructively filed his March 29, 2016 state habeas petition within the limitations period, he is entitled to statutory tolling while that petition was pending. 28 U.S.C. § 2244(d)(2). Thus, the limitations period was extended to December 16, 2016. However, Petitioner is not entitled to any further tolling of the limitations period. Petitioner's recent state habeas petition was filed after the expiration of the limitations period. Once the limitations period lapsed, it could not be reinitiated. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that Section 2244(d) "does not permit the reinitiation of the limitations period that has ended before the state petition was filed"). Additionally, although the Supreme Court has held that the AEDPA's one-year limitations period is subject to equitable tolling in appropriate cases, Holland v. Florida, 560 U.S. 631, 649 (2010), Petitioner has not asserted any facts which might warrant equitable tolling. As such, the limitations period expired on December 16, 2016 and therefore, even if Petitioner returned to state court, any new claims would be untimely. Duncan v. Walker, 533 U.S. 167, 172-75 (2001) (unlike the filing of a state habeas petition, the filing of a federal habeas petition does not toll the statute of limitations).
On the issue of "relation-back," if a petitioner's newly-exhausted claims are untimely, he will only be able to amend his petition to include these new claims if they share a "common core of operative facts" with the claims in his original petition. King, 564 F.3d at 1141 (citation omitted). A "new claim does not `relate back' to the filing of an exhausted petition simply because it arises from `the same trial, conviction, or sentence.'" Id. (citation omitted). Again, in this case, Petitioner has not identified the specific new claims he belated may desire to pursue in federal court. Even assuming that Petitioner is referring to the claims he asserted in his recent state habeas petition (Objections, Exh. C), none of these claims relate back to the claims asserted in the Petition. Petitioner's unexhausted claims relate to the resentencing hearing and the sufficiency of the evidence, while his original claims relate only to the initial sentencing and the firearm sentence enhancement allegations. As such, Petitioner's unexhausted claims rely on entirely different facts than his original claims and thus, do not share a common core of operative facts. As such, even if Petitioner had filed a motion to stay the proceedings while he exhausts his new claims, such motion would be denied.2
IT IS THEREFORE ORDERED that (1) Respondent's Motion to Dismiss is granted; (2) Petitioner's Motion for Stay is denied; and (3) Judgment is entered dismissing this action without prejudice as moot.
