FINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN, Magistrate Judge.

Petitioner is a state prisoner proceeding without counsel in an action brought under 28 U.S.C. § 2254. Respondent moves to dismiss the case as partially unexhausted. ECF No. 15. For the reasons that follow, it is recommended that the motion be granted in part, that the petition be deemed amended to delete the unexhausted claim, and that petitioner be allowed an opportunity to inform the court whether he wishes to proceed immediately or will seek to exhaust the deleted claim.

I. Background

Petitioner was convicted of various charges related to an incident of domestic violence in the Shasta County Superior Court in 2014. ECF No. 18, Resp't's Notice of Lodging Document in Paper, Lodged Document (hereinafter "Lodg. Doc.") No. 1. The court sentenced him to a determinate sentence of 21 years in prison. Id. Petitioner sought review of the conviction in the California Court of Appeal. Lodg. Doc. No. 2. The court rejected his appeal on January 28, 2016. Id. The California Supreme Court summarily denied petitioner's petition for review on April 13, 2016. Lodg. Docs. Nos. 3, 4.

Petitioner has filed a single collateral attack on his conviction: a petition for writ of habeas corpus filed in the Shasta County Superior Court on April 6, 2016. Lodg. Doc. No. 5. The court denied the petition on April 26, 2016. Lodg. Doc. No. 6.

II. The Motion to Dismiss

Respondent argues that the petition should be dismissed because one of the claims raised in the instant case has not been exhausted. ECF No. 15. Petitioner responds that he tried to exhaust his claims by filing the same paperwork in the superior court, but that he is "not too bright on what court is what." ECF No. 17.

A. The Exhaustion Requirement

A district court may not grant a petition for a writ of habeas corpus unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). A state will not be deemed to have waived the exhaustion requirement unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).

Exhaustion of state remedies requires that petitioners fairly present federal claims to the highest state court, either on direct appeal or through state collateral proceedings, in order to give the highest state court "the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations omitted). "[A] state prisoner has not `fairly presented' (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 904 (9th Cir. 2000). "[T]he petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident . . . ." Id. (citations omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) ("[A] claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief."); Duncan, 513 U.S. at 365-66 (to exhaust a claim, a state court "must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.").

In addition to identifying the federal basis of his claims in the state court, the petitioner must also fairly present the factual basis of the claim in order to exhaust it. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir. 2010). "[T]he petitioner must . . . provide the state court with the operative facts, that is, `all of the facts necessary to give application to the constitutional principle upon which [the petitioner] relies.'" Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)).

Where a federal habeas petitioner has failed to exhaust a claim in the state courts according to these principles, she may ask the federal court to stay its consideration of her petition while she returns to state court to complete exhaustion. Two procedures may be used in staying a petition — one provided for by Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) and the other by Rhines v. Weber, 544 U.S. 269 (2005). King v. Ryan, 564 F.3d 1133, 1138-41 (9th Cir. 2009). Under the Kelly procedure, the district court may stay a petition containing only exhausted claims and hold it in abeyance pending exhaustion of additional claims which may then be added to the petition through amendment. Kelly, 315 F.3d at 1070-71; King, 564 F.3d at 1135. If the federal petition contains both exhausted and unexhausted claims (a so-called "mixed" petition), a petitioner seeking a stay under Kelly must first dismiss the unexhausted claims from the petition and seek to add them back in through amendment after exhausting them in state court. King, 564 F.3d at 1138-39. The previously unexhausted claims, once exhausted, must be added back into the federal petition within the statute of limitations provided for by 28 U.S.C. § 2244(d)(1), however. King, 564 F.3d at 1140-41. Under that statute, a one-year limitation period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2241(d)(1). A federal habeas petition does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

Under Rhines, a district court may stay a mixed petition in its entirety, without requiring dismissal of the unexhausted claims, while the petitioner attempts to exhaust them in state court. King, 564 F.3d at 1139-40. Unlike the Kelly procedure, however, Rhines requires that the petitioner show good cause for failing to exhaust the claims in state court prior to filing the federal petition. Rhines, 544 U.S. at 277-78; King, 564 F.3d at 1139. In addition, a stay pursuant to Rhines is inappropriate where the unexhausted claims are "plainly meritless" or where the petitioner has engaged in "abusive litigation tactics or intentional delay." Id.

B. Analysis

This federal petition contains four claims, one of which was not presented to the California Supreme Court in petitioner's sole filing there — that is, petitioner's claim that his trial counsel rendered constitutionally deficient assistance. Compare ECF No. 1-1 with Lodg. Doc. No. 3. Accordingly, the petition is "mixed." Petitioner has not expressly asked the court to stay proceedings while he tries to exhaust the ineffective assistance claim, much less shown "good cause" under Rhines. Soto v. Lewis, No. SA CV 13-1711-DPP (DFM), 2016 U.S. Dist. LEXIS 140838, at *14 (C.D. Cal. June 8, 2016) (noting that ignorance of the law is not good cause under Rhines); see Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (noting that the good cause standard must be interpreted to apply in limited circumstances according to the U.S. Supreme Court's direction in Rhines). Indeed, it is not clear from petitioner's response to the motion to dismiss whether he would like the court to stay the petition even under Kelly (which, as discussed above, does not require a showing of good cause). Petitioner states that he wants to go forward with this case and have the ineffective assistance claim "deleted," but he also indicates some dissatisfaction with that prospect. ECF No. 17 at 2 (stating that he has done "a lot more home work on . . . ineffective counsel").

Because the petition contains an unexhausted claim and petitioner has not provided good cause for staying the case, petitioner has two options. The court can deem the petition amended to delete the unexhausted claim, and then petitioner can either (1) inform the court that he wishes to proceed with the petition as amended or (2) petitioner can ask the court to stay the case while he files a petition in the California Supreme Court to exhaust the ineffective assistance claim and then seek to amend the petition again to add the claim back. If petitioner picks option (1), he should be aware that he may not thereafter be able to obtain federal review of his ineffective assistance claim.

III. Conclusion and Recommendation

In accordance with the above analysis, it is hereby RECOMMENDED that:

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).