The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner who proceeds pro se and in forma pauperis on this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition without prejudice as a "mixed petition." Petitioner opposes the motion to dismiss, and also moves the court to stay the federal petition so that he may return to state court and exhaust his unexhausted claims. For the reasons outlined below, the undersigned recommends that petitioner's motion for a stay of his mixed petition be denied, and that petitioner be given an opportunity to file an amended petition presenting only exhausted claims.
In September 2007, a jury convicted petitioner and his co-defendant of three counts of attempted murder in connection with a January 2006 gang-related shooting in Sacramento. See Petition, Apr. 25, 2012, ECF No. 1 at 1. See also People v. Diaz, 2009 WL 3357924 *1 (Cal. Ct. App. Oct. 20, 2009), located in the record at Lodged Document ("Lod. Doc.") No. 1. The trial court sentenced petitioner to an aggregate term of 18 years 4 months plus 50 years to life in prison. Id. at *3.
Petitioner appealed, and the Court of Appeal affirmed the judgment in an opinion which addressed the convictions of both petitioner and his co-defendant. Lod. Doc. No. 1. Although petitioner's brief to the Court of Appeal is not part of the current record, the October 20, 2009 opinion reflects that petitioner raised the following arguments on appeal:
(1) the trial court erred in failing to give an unanimity jury instruction;
(2) CALCRIM No. 403, the trial court's instruction regarding "natural and probable consequences," misstates the "natural and probable causes" doctrine;
(3) CALCRIM No. 600, the trial court's "Kill zone" instruction, violated petitioner's state and federal due process rights, and rights to a fair trial because, among other things, the facts of this case did not support such an instruction;
(4) there was insufficient evidence to convict petitioner under the "natural and probable consequence" doctrine; and
(5) there was insufficient evidence to convict petitioner because there was insufficient proof that his conduct was the legal and proximate cause of the shootings.
On November 30, 2009, petitioner, through counsel, petitioned for review of the Court of Appeal's decision in the California Supreme Court. See Lod. Doc. No. 2. Petitioner presented the following questions:
(1) where a defendant is convicted of attempted murder on an aiding and 2 betting theory, and there are three separate acts which he might be found liable of aiding, is it error for the trial court to fail to require the jury to decide unanimously which of the three acts the defendant committed?; and
(2) was the trial court's use of CALCRIM 402 and 403, on the issue of aiding and abetting and the natural and probable consequences doctrine, reversible error?
On February 10, 2010, the state Supreme Court denied the petition for review. Lod. Doc. No. 3.
On November 3, 2010, petitioner filed pro se a petition for writ of habeas corpus in the Sacramento County Superior Court (the "Superior Court Petition"). See Lod. Doc. No. 4. The application stated that petitioner was raising claims not presented on appeal due to the ineffective assistance of appellate counsel. See id. at 5. Petitioner raised the following claims in the Superior Court Petition:
(1) the trial court incorrectly denied petitioner's post-verdict motion for disclosure of juror information;
(2) petitioner received ineffective assistance of trial counsel because:
(a) counsel failed to request lesser-included offenses;
(b) counsel failed to proceed with agreed-upon defense;
(c) counsel inadequately advised petitioner not to testify;
(d) counsel failed to follow up with a potential witness; and
(e) counsel failed to object to trial court's instructions.
(3) petitioner received ineffective assistance of appellate counsel because:
(a) counsel failed to raise the ineffectiveness of trial counsel on appeal, even though petitioner requested that counsel do so;
(b) counsel failed to establish a "working relationship" with petitioner, or to respond to numerous letters and call from petitioner's family;
(c) counsel failed to provide petitioner with work product as petitioner requested; and
(d) counsel failed to raise on appeal the trial court's denial of petitioner's motion juror information, even though petitioner asked counsel to do so.
On January 10, 2011, the trial court denied the Superior Court Petition. Lod. Doc. No. 5.
On April 11, 2011, petitioner filed a petition for writ of habeas corpus in the Court of Appeal (the "Court of Appeal Petition"). Petitioner raised the following claims in the Court of Appeal Petition:
(1) trial counsel was ineffective because she admitted to the jury during closing that petitioner said, "Get a gun," undermining the defense's theory of the case; and
(2) the trial court erred when it denied petitioner's motion for juror information.
On April 21, 2011, the Court of Appeal denied the Court of Appeal ...