Garcia

MEMORANDUM **

Jose Jesus Garcia was convicted in California state court of attempted murder and two counts of assault with a firearm. He was sentenced to life imprisonment with possibility of parole on the conviction for attempted murder and received an additional eight years for personal use of a firearm, inflicting great bodily injury, and being armed with a firearm. Following Petitioner’s conviction, appointed counsel timely filed an appeal. Counsel raised a single issue, asserting a sentencing enhancement error. The State conceded the error, and the California Court of Appeals affirmed the conviction and struck the erroneous enhancement.

Nine months later, Petitioner filed for a writ of habeas corpus in the California Supreme Court, asserting the trial court erred by admitting certain testimony. The court summarily denied the petition, citing In re Swain, 34 Cal.2d 300, 304 , 209 P.2d 793 (1949).

Petitioner subsequently filed a federal petition for writ of habeas corpus in the United States District Court, asserting that the disputed testimony violated his federal due process right. The district court dismissed without prejudice his petition as unexhausted, relying on the…