The opinion of the court was delivered by: Anthony W. Ishii United States District Judge
On June 14, 2012, Petitioner Johnny Avila, Jr. ("Avila") filed his federal petition for writ of habeas corpus, along with a Motion for stay and abeyance of his federal proceedings. Doc. 27. Avila concurrently filed in the California Supreme Court a second state habeas petition (Case No. S203288), presenting unexhausted claims which were included in his federal petition. Respondent Kevin Chappell ("Warden") filed an opposition to Avila's motion for stay and abeyance August 27, and Avila filed a reply August 29, 2012. Avila's motion for stay and abeyance was granted September 7, 2012, but was stayed until after the Court could address the exhaustion status of the remaining claims in Avila's federal petition.
1 Avila admits the following claims in his federal petition present 2 allegations which are unexhausted: Claim 1 - Intellectual Disability ("Atkins 3 claim"); Claim 2 - Cognitive Impairments Equal to Intellectual Disability; Claim 8 4 - Jury Misconduct, Material Misstatement at Selection and Outside Consultation 5 during Penalty Deliberations; Claim 50 - Unconstitutional State Appellate and 6 Post-Conviction Review; and Claim 51 - Ineffective Assistance of State Appellate 7 and Habeas Counsel. Avila contends the following claims were previously 8 presented to the state, but are expanded in his federal petition: Claim 9 -9 Ineffective Assistance of Counsel at Guilt; and Claim 30 - Ineffective Assistance of Counsel at Penalty.
The parties filed a Joint Statement on Exhaustion, agreeing that certain claims and subclaims in the federal petition are currently unexhausted. The Warden agrees with Avila that Claims 1, 2, 8, 50 and 51 are not exhausted. The parties also agree the following claims are unexhausted:
Subclaim 4.B.13 - court error in not excusing Juror FF for cause;
Subclaims 5.C.6 - ineffective assistance of counsel for failing to discover prosecutor's system for peremptory challenges;
Subclaims 5.H.2 through 5 - ineffective assistance of counsel for inadequately challenging prosecutor's peremptory challenges and failing to join objections by co-defendant's counsel;
Subclaims 9.B.7 and 8 - ineffective assistance of counsel for failing to investigate, prepare, and present a trial defense, specifically regarding Avila's family and social history, intellectual disability, physical and mental impairments, and to develop a complete social history;
Subclaim 9.D - ineffective assistance of counsel for failing to properly represent
Avila during the jury selection process;
1 Subclaims 9.E.5, 6, 8, 9, 10, and 17 - ineffective assistance of counsel for failing to 2 properly represent Avila during trial by inadequately challenging 3 prosecution witnesses and failing to assure proper jury instructions; 4 Subclaims 9.G.1, 7, 8 - ineffective assistance of counsel for failing to assure an 5 unbiased jury from a cross-section of the community, to adequately 6 present Avila's physical and mental impairments, to adequately present 7 Avila's social history; 8 Subclaim 24.H - denial of meaningful appellate review by the state court's denial 9 of insufficiency of the evidence claim;
Subclaims 30.B.1, 3, 5 and 6 - ineffective assistance of counsel at penalty for failing to investigate, prepare and present a case in mitigation and refute the prosecution's case in aggravation, specifically, misconduct in cross-examination of defense experts, failure to obtain appropriate experts, failure to obtain funds, ...