The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO DISMISS
On December 19, 2006, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody. Petitioner raised the following claims: (1) ineffective assistance of trial counsel; and (2) abuse by appellate court by summarily denying Petitioner's writ of habeas corpus when a clear violation of Petitioner's Sixth and Fourteenth Amendment rights were presented. (See Petition at page 5, attached memorandum.)
On February 12, 2007, Petitioner filed a Request for Stay and Abeyance Pending State Court Exhaustion to exhaust a claim under Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007).
On February 12, 2007, the Court issued a Minute Order ordering Respondent to file an Opposition or Statement of Non-Opposition. On February 20, 2007, Respondent filed a "Statement of Non-Opposition to Motion to Stay." On February 23, 2007, the Court issued a Minute Order granting Petitioner's Request for a Stay to exhaust his claims in state court.
On May 20, 2008, Petitioner filed a First Amended Petition. Petitioner raised a claim under Cunningham and an insufficiency of the evidence claim regarding his prior convictions.
On July 7, 2008, Petitioner filed an "Application for Enlargement of Time to Refile a Correct and Complete First Amended Petition in this Court." On July 9, 2008, the Court issued a Minute Order granting Petitioner leave to file a Second Amended Petition containing the claims raised in the original petition and the newly exhausted claims contained in the First Amended Petition.
On September 8, 2008, Petitioner filed an "Amended Petition" which the Court has construed as a Second Amended Petition. Petitioner raised the following claims: (1) ineffective assistance of counsel; (2) due process of law; and (3) unlawfully imposed upper sentence term based on facts not presented to the jury. (See Second Amended Petition at 5-6; attachment pp. 1-21.)
On December 9, 2008, Respondent filed a Motion to Dismiss Petitioner's Second Amended Petition on the grounds that the Petition contains unexhausted claims. Specifically, Respondent contends that Petitioner in his Second Amended Petition added the following claims:
(1) the trial court violated his due process rights by failing to reduce his conviction for carjacking to the lesser offense of joyriding (Second Amended Petition, attachment at 4); (2) the trial court violated his "Fourth Amendment" by failing to appoint independent counsel to investigate whether he received ineffective assistance of trial counsel (Second Amended Petition, attachment at 5-6, 9-10, 18); (3) the failure to appoint independent counsel was an abuse of discretion (Second Amended Petition, attachment at 9, 11-13); (4) trial counsel provided ineffective assistance by failing to present testimony from a character witness (Second Amended Petition, attachment at 5); and (5) counsel provided ineffective assistance by failing to admit evidence pursuant to California Evidence Code §1241 (Second Amended Petition, attachment at 14). Respondent contends that Petitioner never presented these additional claims in either his Petitions for Review or his Petition for Writ of Habeas Corpus in the California Supreme Court.
On December 15, 2008, the Court issued a Minute Order ordering Petitioner to file an Opposition or Statement of Non-Opposition to Respondent's Motion to Dismiss Second Amended Petition.
On January 14, 2009, Petitioner filed a document entitled "Application for Opposition to the Motion to Dismiss Petitioner's Second Amended Petition." In this document, Petitioner contends that all facts and claims contained in the Second Amended Petition have been exhausted in the state courts. However, Petitioner requests the Court to strike the unexhausted portions of the claims if the Court finds that some of the claims are in fact unexhausted.
Petitioner was convicted by a Los Angeles County Superior Court jury of carjacking in violation of California Penal Code ("PC") §215(a) and sentenced to state ...