United States District Court, E.D. California
DALE A. DROZD, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss the petition due to petitioner's alleged failure to exhaust his claims by first presenting them to the state high court and petitioner's motion for a stay and abeyance.
On January 27, 2012, a Solano County Superior Court jury found petitioner guilty of assault by a life prisoner with infliction of great bodily injury and possession of a weapon while confined in a penal institution. Pursuant to that conviction the trial court sentenced petitioner to twelve years to life in state prison on the assault charge, two years for custodial possession of a weapon, five years for having a prior felony conviction, and one year for having served a prior prison term. On April 30, 2013, the California Court of Appeal stayed petitioner's two-year sentence for custodial possession of a weapon and otherwise affirmed the judgment of conviction. On July 10, 2013, the California Supreme Court denied review. (Pet. at 2-3, Resp't's Mot. to Dismiss, Exs. 1 & 2.)
On September 22, 2014, petitioner filed his federal habeas corpus petition with this court. In that petition, he asserts five claims for federal habeas relief:
(1) The trial court's refusal to give a modified instruction on imperfect self-defense was prejudicial error.
(2) The instructional error deprived petitioner of the opportunity to present a defense that he lacked the requisite malice and deprived him of federal and state constitutional rights to due process.
(3) The evidence introduced at his trial was insufficient to establish that he acted with malice.
(4) The evidence introduced at his trial was insufficient to establish that he did not act in self-defense.
(5) The sentence imposed against him on the possession of a weapon charge should have been stayed pursuant to California Penal Code Section 654.
(Pet. Pt. 2 Attach.)
THE PARTIES' ARGUMENTS
Counsel for respondent argues that although petitioner raised all five of his claims before the California Court of Appeal, he only raised Claims (1) and (2) in his petition for review to the California Supreme Court. Since petitioner did not present his Claims (3) and (4) to the California Supreme Court, and Claim (5) has been rendered moot because the California Court of Appeal granted petitioner the requested relief already, counsel for respondent argues that the court must dismiss the petition. (Resp't's Mot. to Dismiss at 2-4.)
Petitioner does not dispute that Claim (5) is now moot. However, petitioner contends that this court should not dismiss his pending petition and instead, should stay this action and allow him to return to state court to exhaust his Claims (3) and (4). Upon completion of exhaustion, petitioner contends that he will file an amended petition in this case so that ...