ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him in the San Joaquin County Superior Court in 2007 for first degree murder. Before the court is respondent's motion to dismiss on the ground that petitioner failed to exhaust all of his claims in state court prior to filing this federal habeas action as required by 28 U.S.C. § 2254(b).
PETITION FOR WRIT OF HABEAS CORPUS
In his habeas petition, filed in this court on November 16, 2009, petitioner raises five grounds for relief.
Ground One:Ineffective Assistance of Counsel Counsel made numerous mistakes at trial such as, cross-examination, failure to request pin-point instruction regarding murder/state of mind. Counsel failed to object to exclusion of state of mind evidence. It blocked Petitioner from having a clear understanding to the jury about petitioners [sic] case, state of mind[.]
Ground Two: Petitioner was deprived due process under federal and state Constitutions Court improperly instructed jury regarding 1st and 2nd degree murder which deprived jury of making any meaningful distinction between the men's [sic] rea requirements amounting to a direct verdict.
Ground Three: Petitioner was deprived right to counsel and his right to Due Process under the 5th, 6th, and 14th Amendments Counsel failed to object adequately, make a record and/or request a limited instruction regarding unreliable and prejudicial character evidence from being presented to the jury through the cross-examination of the defense expert.
Ground Four: Petitioner was deprived of his right to Due Process under both state and federal Constitutional The exclusion of state of mind evidence that would have corroborated petitioners [sic] state of mind defense based upon a delusional belief that the victim was molesting his own children deprived petitioner of his right and to present a meaningful defense.
Ground Five: Denial of due process and denial of right to a fair trial The state court of appeal found no single error to aggregate. However, here, the aggregate nature of the errors is profound because of at every turn, the errors favored the prosecution. Petitioner believed the victim was molesting his own children and that's why he killed Larry. There is overwhelming evidence that Petitioner was "delusional" and even mentally ill during the murder as well as after. Since the time of petitioners [sic] arrest back in 2003 til this day, he has been heavily medicated and believed to be mentally ill. Petitioner believes the errors singularly or cumulatively prejudiced him and deprived him due process and his right to a fair trial by an impartial jury requiring reversal.
(Petition, Doc. No. 1 at 4-5 &7.)
In moving to dismiss the petition, respondent has provided the court the following background information. Petitioner was convicted in 2007 of first degree murder. He appealed his conviction to the California Court of Appeal for the Third Appellate District. The judgment was affirmed on February 4, 2009. The California Supreme Court denied the petition for review on May 13, 2009. Petitioner did not file any post-conviction challenges in state court.
Respondent argues that petitioner failed to exhaust all of the subclaims presented under his first ground for relief in the petition filed with this court. Respondent summarizes those subclaims as, ineffective assistance based on counsel's alleged failure to: "(a) cross-examine witnesses, (b) request a pinpoint instruction regarding Petitioner's state of mind during the murder, (c) object to the exclusion of state of mind evidence[.]" (MTD at 2.) According to respondent, petitioner sub-claims (a) and (c) are unexhausted because they were not raised in his petition for review filed with the California Supreme Court. Respondent also contends that in his response to question thirteen of his form federal habeas petition, petitioner has admitted that these two sub-claims were not presented to the state courts. That question inquiries whether any of the grounds for relief were not previously presented in state or federal court. Respondent notes that petitioner answered the inquiry as follows: "The letter I've written to you states most of the grounds that I didn't bring up. I had no control on what my appellate lawyer did or didn't do." (Pet. (Doc. No. 1) at 5.)*fn1 Respondent argues that a new basis for an ineffective assistance of counsel claim that was not presented to the state court is unexhausted. (MTD at 3) (citing Carriger v. Lewis, 971 F.2d 329, 333-34 (9th Cir. 1992) (en banc) and Pappageorge v. Sumner, 688 F.2d 1294 (9th Cir. 1982)). Therefore, respondent asserts that unless petitioner amends his federal petition so as to delete the unexhausted claims, the court must dismiss the pending petition.
Petitioner contends that the ineffective assistance of counsel sub-claims in question are only unexhausted because his "councle [sic] did ...