ORDER TO STAY AND ADMINISTRATIVELY CLOSE THE ACTION

Docket Nos. 15, 19

EDWARD M. CHEN, District Judge.

Guillermo A. Bran filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his 2017 conviction in the Santa Clara County Superior Court for forcible lewd and lascivious conduct on a child under age 14. The matter is now before the Court to determine whether the action should be stayed or dismissed.

The only cognizable claim in the federal petition for writ of habeas corpus is a claim of ineffective assistance of counsel with regard to the guilty plea entered that led to Mr. Bran's conviction. Mr. Bran unsuccessfully presented that claim to the California Supreme Court before filing his federal habeas petition, thereby exhausting state court remedies for the claim. Collateral review proceedings are currently pending in the Santa Clara County Superior Court, however, on Mr. Bran's recently-filed motion to vacate his conviction based on ineffective assistance of counsel and newly discovered evidence showing actual innocence. Although the superior court rejected his ineffective assistance of counsel claim, it appointed counsel for him on the actual innocence claim and that actual innocence claim has not yet been adjudicated in the superior court.

Mr. Bran has moved for a stay of the federal habeas proceedings so that he may fully litigate his claims in the state courts before, if necessary, going forward with them in this federal habeas action. Respondent has opposed that motion for a stay, and urges instead that the Court should apply the abstention doctrine in Younger v. Harris, 401 U.S. 37 (1971), to dismiss this action because of the pendency of the state court proceedings.

There are two kinds of stays available in a habeas action: the Rhines stay and the King/Kelly stay. A stay under Rhines v. Weber, 544 U.S. 269 (2005), "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. at 277-78. The King/Kelly stay is the second kind of stay and is an alternative method to deal with a petitioner who has some unexhausted claims he wants to present in his federal habeas action. Under the procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), "(1) a petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition." King v. Ryan, 564 F.3d 1133, 1134 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1070-71). A petitioner seeking to avail himself of the Kelly three-step procedure is not required to show good cause as under Rhines, but rather must eventually show that the amendment of any newly exhausted claims back into the petition satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by sharing a "common core of operative facts" and Duncan v. Walker, 533 U.S. 167 (2001), by complying with the statute of limitations. King, 564 F.3d at 1141-43.

Mr. Bran is not entitled to a Rhines stay because he does not show that there is a potentially meritorious federal claim that was not exhausted before he filed his federal habeas petition. His case is in an odd posture because it is the actual innocence claim that is unexhausted, yet his actual innocence claim is not potentially meritorious as a federal habeas claim.1 But that claim may support relief in the pending state proceedings, where that court is not constrained by the limits of § 2254(d).

A King/Kelly stay is less demanding than a Rhines stay, and the only currently applicable requirement for a King/Kelly stay is that the petition sought to be stayed has no unexhausted claims. Mr. Bran's petition satisfies that requirement. The King/Kelly stay determination does not appear to require the federal court to determine that the unexhausted claim(s) are potentially meritorious. Whether the new claim(s) that Mr. Bran intends to exhaust will relate back to the petition and/or comply with the statute of limitations can be decided when he returns after exhausting state court remedies and moves to amend his petition to add the newly-exhausted claim(s). The Court will grant a King/Kelly stay so that Mr. Bran may exhaust state court remedies for claims he wishes to present to this Court. Mr. Bran must diligently pursue his state court remedies regarding his claims, and must return to federal court within thirty days of a final decision by the state courts on the claim(s). See Kelly, 315 F.3d at 1070

Mr. Bran's motion for a stay and abeyance is GRANTED. Docket No. 19. After Mr. Bran concludes his state court efforts to exhaust his new claim(s), he may file in this Court a motion to file an amended federal petition in which he presents all his claims, including the new claim(s).

Respondent's motion to dismiss the action under the Younger abstention doctrine is DENIED. Docket No. 15. Because the action is being stayed to allow Mr. Bran to exhaust his state court remedies, dismissal based on the very fact of those state court proceedings is unwarranted.

For the foregoing reasons, this action is now STAYED and the clerk shall ADMINISTRATIVELY CLOSE the action. Nothing further will take place in this action until Mr. Bran exhausts any unexhausted claims and, within thirty days of doing so, moves to reopen this action, lift the stay and amend his petition to add the newly exhausted claim(s). This order disposes of Docket Nos. 15 and 19.

IT IS SO ORDERED.