REPORT AND RECOMMENDATION

ERIC J. MARKOVICH, Magistrate Judge.

I. Background

Petitioner filed this action on May 30, 2018 and filed his Amended Petition for Writ of Habeas Corpus on August 27, 2018. (Doc. 9). The Court ordered Respondents to file an Answer to the Amended Petition, which was due on December 11, 2018. The Court subsequently granted Respondents an extension until January 25, 2019. (Doc. 16).

Respondents filed another motion on January 11, 2019 requesting that the Court either order that the answer be due 40 days after Petitioner notified the Court of completion of his state PCR proceedings,1 or, in the alternative, that the Court enter an order staying this matter pending the outcome of the state PCR proceedings, or dismissing this matter without prejudice and with leave for Petitioner to refile his habeas petition upon completion of his state PCR proceedings. (Doc. 17). On January 14, 2019 the Court issued an Order granting Respondents an extension to file their answer by March 6, 2019. (Doc. 18).

On January 19, 2019 Petitioner filed a motion to deny the state's request for a stay and requested that this Court order Respondents to file an answer by the January 25, 2019 deadline or strike the answer. (Doc. 19). That same date, Petitioner also filed a motion to reconsider the Court's Order on Respondents' request for an extension of time. (Doc. 20).

On January 25, 2019 Respondents filed a motion for clarification and to stay deadline to file answer. (Doc. 21). Respondents request clarification from Petitioner as to whether he wants to: (1) proceed on his exhausted habeas claims and dismiss his unexhausted claims that are still pending in state court, or (2) dismiss his federal habeas proceedings without prejudice to allow him to complete his state court proceedings and then return to federal court. Alternatively, Respondents request that the Court stay and abey the federal proceedings until Petitioner's state court proceedings are completed.

The undersigned Magistrate Judge recommends this habeas action be stayed pending the exhaustion of Petitioner's claims currently being litigated in the Arizona Court of Appeals in his successive post-conviction petition. Because granting a stay may be beyond the lawful authority of a magistrate judge and, out of an abundance of caution, the undersigned proceeds by report and recommendation to the assigned District Judge, the Honorable Jennifer G. Zipps.2

II. Law

Ordinarily, a district court may not grant a petition for a writ of habeas corpus filed by a petitioner in state custody unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). The exhaustion inquiry focuses on the availability of state remedies at the time the petition for writ of habeas corpus is filed in federal court. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Exhaustion of state remedies requires a petitioner in state custody to fairly present his 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); see also Sanders v. Ryder, 342 F.3d 991, 1000 (9th Cir. 2003), cert. denied, 541 U.S. 956 (2004).

In Arizona, unless a prisoner has been sentenced to death, the "highest court" requirement is satisfied if the petitioner has presented his federal claims to the Arizona Court of Appeals either on direct appeal or in a petition for post-conviction relief. Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007).

A federal court may not "adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims." Rhines v. Weber, 544 U.S. 269, 273 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-519 (1982)). In Rhines, however, the Supreme Court held that "a federal district court has discretion to stay [a] mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition." Id. at 271-72. This discretion is to be exercised under "limited circumstances," id. at 277, because "routinely granting stays would undermine the [Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")] goals of encouraging finality and streamlining federal habeas proceedings." Blake v. Baker, 745 F.3d 977, 981-82 (9th Cir. 2014); see also Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir. 2000) ("It is true that a trial court has the inherent authority to control its own docket and calendar . . . At the same time, habeas proceedings implicate special considerations that place unique limits on a district court's authority to stay a case in the interests of judicial economy . . . Consequently, although a short stay may be appropriate in a habeas case . . . we have never authorized, in the interests of judicial economy, an indefinite, potentially lengthy stay in a habeas case.").

Section 2254 proceedings are governed by AEDPA, which imposes a one-year statute of limitations for the filing of a federal habeas petition. While that limitations period is tolled "during the pendency of a `properly filed application for State post-conviction or other collateral review,' [28 U.S.C.] § 2244(d)(2), the filing of a petition for habeas corpus in federal court does not toll the statute of limitations." Rhines, 544 U.S. at 274-75. A stay under Rhines "eliminates entirely any [AEDPA statute of] limitations issue with regard to the originally unexhausted claims, as the claims remain pending in federal court[.]" King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009).

III. Analysis

Petitioner's motions (Docs. 19 and 20) suggest that Petitioner may be confused about what Respondents are requesting. Petitioner states that he is not planning to file a second habeas petition. However, the issue is not whether Petitioner is planning to file another federal habeas petition—it is the fact that Petitioner's second PCR proceedings are ongoing in state court, and thus Petitioner's claims in his habeas petition that relate to that second PCR petition are not yet exhausted. If Petitioner chose to proceed only on the exhausted claims in his current habeas corpus case, this Court would likely be unable to consider any claims in his pending state proceedings unless Petitioner first obtained authorization from the Ninth Circuit Court of Appeals to file a second or successive habeas corpus case. 28 U.S.C. § 2244(b)(2), (3). To avoid having to later seek leave from the Ninth Circuit to file a second or successive habeas corpus case as to his pending state claims, Petitioner could voluntarily dismiss or seek to voluntarily dismiss his current habeas corpus case without prejudice by following the procedures set forth in Rule 41(a) of the Federal Rules of Civil Procedure. If he did so, he could file a new habeas corpus case that includes all of the claims he wants to raise, including claims from his pending PCR proceedings. However, although the one-year statute of limitations for filing a habeas corpus case is tolled during the pendency of a properly filed application for state post-conviction relief and a properly filed petition for review of the denial of Rule 32 relief, the one-year statute of limitations is not tolled for the period during the pendency of an improperly filed Rule 32 proceeding or an improperly filed petition for review. Thus, if Petitioner chose to voluntarily dismiss this habeas action and later file a new habeas corpus case, statute of limitations issues could potentially prevent Petitioner from timely filing a new habeas corpus petition.3

Therefore, the Court finds that it is appropriate to stay and abey this matter until the completion of Petitioner's state PCR proceedings. While Rhines instructs that "the district court's discretion in structuring the stay is limited by the timeliness concerns reflected in AEDPA [and that a] mixed petition should not be stayed indefinitely[,]" in the present matter Petitioner began his second PCR proceedings before filing his habeas petition, and is presently only waiting for a decision from the Arizona Court of Appeals on his petition for review; thus, the stay will be limited in time. 544 U.S. at 277.

IV. Recommendation

Accordingly, the undersigned magistrate recommends that the District Court enter an order GRANTING Respondents' Motion for Stay (Doc. 21) and DENYING Petitioner's Motions (Docs. 19 and 20). The undersigned further recommends that the District Court grant a limited-in-time stay until Petitioner's state PCR are complete, that Petitioner be required to file a notice with this Court following the Arizona Court of Appeals decision on his petition for review, and that Respondents be required to file their Answer within 40 days after Petitioner files his notice of the final disposition of his state court proceedings.

The undersigned expresses no opinion as to whether Petitioner's unexhausted claims are timely, procedurally defaulted, or subject to any exceptions. Nor does the undersigned express any opinion as to the merits of Petitioner's habeas claims.

Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Fed. R. Civ. P. 72(b). No reply to any response shall be filed. See id. If objections are not timely filed, then the parties' rights to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).