MEMORANDUM OPINION AND ORDER GRANTING MOTION TO STAY AND ABATE PROCEEDINGS
DAVID C. GODBEY, District Judge.
Petitioner Robert Sparks has filed an opposed motion to stay proceedings and hold them in abeyance ("Motion, " doc. 18). Respondent has agreed to the motion to stay these proceedings in his reply to this motion ("Reply", doc. 27). The Court finds that the agreed stay should be GRANTED.
I. PROCEDURAL HISTORY
On December 11, 2008, Sparks was convicted and sentenced to death for the murder of his two stepsons. State v. Sparks, No. F08-01020-VJ (Crim. Dist. Ct. 3, Dallas County, Texas). The conviction and sentence were affirmed on direct appeal. Sparks v. State, No. AP-76, 099, 2010 WL 4132769 (Tex. Crim. App. Oct. 20, 2010), cert. denied, 131 S.Ct. 2152 (2011). Sparks applied for state habeas relief and was granted an evidentiary hearing, but relief was denied on December 14, 2011. Ex parte Sparks, WR-76, 786-01, 2011 WL 6293529 (Tex. Crim. App. 2011), cert. denied, 133 S.Ct. 526 (2012).
On February 14, 2012, Sparks filed a motion for appointment of counsel in these proceedings (doc. 1). Lead counsel was appointed for Sparks on March 27, 2012 (doc. 3) and co-counsel was appointed on May 8, 2012 (doc. 4). On September 7, 2012, Sparks and Respondent filed a joint motion for a scheduling order (doc. 6), which was partially granted on November 9, 2012 (doc. 8). This scheduling order authorized a skeletal petition and an amended petition to be filed by Sparks, followed by the answer of Respondent, and a reply by Sparks. Sparks filed his amended petition ("Petition, " doc. 19) with his motion to stay and abate these proceedings (doc. 18) on June 10, 2013. In his motion and certificate of conference, Sparks stated that Respondent opposed the sought stay and abatement of these proceedings. Respondent's answer ("Answer, " doc. 18) and reply to the motion to stay and abate (doc. 27) that he filed on November 4, 2013, however, agrees to the requested stay. Sparks replied to Respondent's answer and to Respondent's reply to Sparks's motion to stay and abate on January 3, 2014 (doc. 32), noting that the motion for stay is now agreed.
I. UNEXHAUSTED CLAIMS
Sparks requests that this Court stay and abate these habeas-corpus proceedings so that he may return to the state court to present an unexhausted claim that, "during its punishment presentation, the State's expert, Mr. A.P. Merrilat, testified falsely concerning the likelihood or opportunities to be violent inside the penitentiary.'" (Mot. at 1 (quoting from the state court record).) Although the certificate of conference to the Motion stated that it was opposed, Respondent agreed to the requested stay in his reply: "Although the Director believes that the state court will procedurally default this claim, in abundance of caution and because of the related and defaulted ineffective assistance of counsel claim, the Director agrees to stay and abate this case while Sparks pursues remedies in state court." (Reply at 1.) And although Sparks's motion to stay mentions only one claim, Respondent's agreement would include another claim: the ineffective assistance of trial counsel. The Court will consider both claims as encompassed by the Motion.
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court held that a district court has discretion to stay a petition containing unexhausted claims so that the habeas petitioner may return to state court to exhaust such claims in limited circumstances.
Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance 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. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.
Id., at 277 (citing 28 U.S.C. § 2254(b)(2)). The Supreme Court further cautioned against the undue refusal to allow development of such claims.
On the other hand, it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.
at 278. Extra care is also appropriate in the disposition of this case in which the death penalty has been assessed, so that any potentially meritorious claim may be properly considered before an execution is allowed to proceed and that any unwarranted delay is avoided. See Rhines, 544 U.S. at 277-78 (expressing caution about the special danger of delays in death-penalty cases). This Court must determine (1) whether good cause exists for Petitioner's failure to exhaust, (2) whether the unexhausted claims are plainly meritless, and (3) whether Petitioner intentionally failed to bring these claims earlier in ...