United States District Court, E.D. California
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner is a state prisoner proceeding with counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2011 conviction for attempted murder and related charges. (ECF No. 1 ("Ptn.").) Petitioner was the driver of a car from which a shooter shot a victim in a gang-related incident. (ECF No. 6-2.) He "was convicted as an aider-and-abettor under California's natural-and-probable consequences doctrine." (Ptn. at 1.)
By order issued July 30, 2014, the undersigned determined that the petition was "mixed, " containing both exhausted and unexhausted claims. (ECF No. 5.) Before the court is petitioner's motion to stay this action pursuant to Rhines v. Weber , 544 U.S. 269 (2005). (ECF No. 6.)
Petitioner's unexhausted claims are all pending in state habeas proceedings in the San Joaquin County Superior Court. (ECF Nos. 6-1, 6-2.) They are as follows:
Claim 8: Petitioner was denied due process of law under the Fifth and Fourteenth Amendment to the Constitution by the unexpected construction and retroactive application of a California Penal statute that increased the punishment for his alleged acts, criminal liability for which was vicarious. (Ptn. at 14.)
Petitioner asserts that, in affirming his criminal conviction, the state court of appeal applied a "new rule... retroactively" to petitioner, violating his due process rights under the Constitution's ex post facto clause. Petitioner asserts that this claim "was not presented to the California Supreme Court on direct review of Petitioner's conviction because it did not accrue until the decision affirming the judgment of conviction." (Id. at 14-15.)
Claim 9: Petitioner was denied due process of law under [the] Fourteenth Amendment to the Constitution by his attempted murder conviction absent proof beyond a reasonable doubt of the specific intent to kill Christopher Smith. (Ptn. at 15.)
Petitioner asserts that "[a] sufficiency of the evidence claim was presented to the
California Supreme Court on direct review (Ground/Claim THREE), but not on the basis of failure of proof as to the specific intent to kill. This fact-specific Ground/Claim is raised in state collateral proceedings now pending in San Joaquin County Superior Court." (Id. at 15-16.) Petitioner asserts that his appellate counsel was ineffective in failing to raise this claim on appeal. (Id. at 16-17 (Claim 11).)
Claim 10: Petitioner was denied his Fifth, Sixth, and Fourteenth Amendment rights to due process and a jury trial by the failure of the trial court to give sua sponte CALCRIM 603. (Ptn. at 16.)
Petitioner asserts that "this Ground/Claim was presented to the California Supreme Court on direct review (Ground/Claim FIVE), but not on the basis of failure of the prosecutor's evidentiary concessions combined with the proof that [a rival gang member involved in the shooting] was armed. This fact-specific Ground/Claim is raised in state collateral proceedings now pending in San Joaquin County Superior Court." (Id.) Petitioner ...