United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
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 renewed 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 petitioner was sentenced to serve twelve years to life in state prison on the assault charge, two years imprisonment 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 for the First Appellate District stayed petitioner's two-year sentence for custodial possession of a weapon and otherwise affirmed the judgment of conviction and sentence. 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 constituted 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 the required 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 § 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 on direct appeal, he only raised his current Claims (1) and (2) in his petition for review filed with the California Supreme Court. Since petitioner did not present his current Claims (3) and (4) to the California Supreme Court, and his Claim (5) has been rendered moot because the California Court of Appeal has already granted petitioner the requested relief, counsel for respondent argues that the court must dismiss the pending federal habeas petition. (Resp't's Mot. to Dismiss at 2-4.)
Petitioner does not dispute that his current Claim (5) is now moot. However, petitioner contends that this court should not dismiss his pending mixed federal petition and instead, should stay this federal habeas action pursuant to the decision in Rhines v. Weber, 544 U.S. 269 (2005), and allow him to return to state court to exhaust his current Claims (3) and (4). Specifically, petitioner contends that he is untrained in the practice of law and that his state-appointed attorneys did not advise him to file a habeas corpus petition in state or federal court to further pursue his claims for relief. Petitioner also contends that his state appellate ...