ORDER
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. Petitioner challenges his 2011 conviction for possession of a sharp instrument in prison. (ECF No. 1 at 2.)
I. Exhaustion of State Remedies
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondents' counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).
The United States Supreme Court has held that a federal district court may not entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). A mixed petition containing both exhausted and unexhausted claims must be dismissed.
Petitioner raises three claims in his petition, only two of which have been presented to the California Supreme Court. (See ECF No. 1 at 9-10.) Thus the petition is a mixed petition containing both exhausted and unexhausted claims.
II. Procedures for Exhausted/Unexhausted Claims
Two procedures are available to federal habeas petitioners who wish to proceed with exhausted and unexhausted claims for relief.
The "Kelly procedure," outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), has been described by the Ninth Circuit Court of Appeals to involve the following three-step process:
(1) petitioner amends his petition to delete any unexhausted claims,
(2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted claims, and
(3) petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition.
King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). A petitioner who proceeds under Kelly may amend his petition with newly exhausted claims if they are timely under the statute of limitations governing the filing of federal habeas petitions.2 If a petitioner's newly-exhausted claims are untimely, he may amend his petition to include them only if they share a "common core of operative facts" with the claims in the original federal petition. See King, 564 F.3d at 1140-41; see also 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).3
The United States Supreme Court has authorized a second procedure for pursuing both exhausted and unexhausted claims, set forth in Rhines v. Weber, 544 U.S. 269, 277 (2005). Under the Rhines procedure, the petitioner may proceed on a "mixed petition," i.e., one containing both exhausted and unexhausted claims, and his unexhausted claims remain pending in federal court while he returns to state court to exhaust them. See King, 564 F.3d at 1140; Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) ("Rhines concluded that a district court has discretion to stay a mixed petition to allow a petitioner time to return to state court to present unexhausted claims."). To obtain a Rhines stay of a mixed petition pending exhaustion of the unexhausted claims, the petitioner must show that (1) the unexhausted claims are potentially meritorious; and (2) petitioner had good cause for his earlier failure to exhaust state remedies. 544 U.S. 269.
The court will grant petitioner thirty days to indicate how he wishes to proceed with his mixed petition. He may file an amended petition containing only exhausted claims along with a motion pursuant to Kelly seeking to stay this action pending exhaustion of Claim 3. Or, he may file a motion under Rhines seeking to stay this action pending exhaustion of Claim 3, showing both good cause and potential merit as described above. Finally, petitioner may simply file an amended petition containing only Claims 1 and 2 and proceed on those claims. If petitioner fails to elect one option within the time allotted, his mixed petition will be dismissed without prejudice.
In accordance with the above, IT IS HEREBY ORDERED that petitioner is granted thirty days from the date of this order to file either:
(1) an amended petition containing only exhausted claims, either alone or accompanied by a motion to stay this action pursuant to Kelly while petitioner exhausts state remedies as to Claim 3; or
(2) a motion to stay this action pursuant to Rhines while he exhausts state remedies as to Claim 3.
Failure to comply with this order will result in this action being dismissed without prejudice.
