Galaza

MEMORANDUM ***

Petitioner-Appellant Patrick Richardson (“Richardson”), a California state prisoner, appeals from a dismissal without prejudice of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We have appellate jurisdiction pursuant to 28 U.S.C. § 2253 , and we reverse and remand.

BACKGROUND

Richardson’s original habeas petition, filed in the Northern District of California on September 24, 1997, contained four fully-briefed claims, including the allegation there had been insufficient evidence for the finding at his trial that an unlawful penetration had been the natural consequence of a conspiracy. His petition also mentioned, but did not brief, other claims that he wanted reviewed by the federal court after exhaustion in the state court system, including a claim of ineffective assistance of counsel at trial and appeal.

On April 27, 1998, United States District Judge Ronald M. Whyte of the Northern District of California, to whom the case was originally assigned, dismissed three of the four fully-briefed claims in the habeas petition. However, the unlawful penetration claim was considered “cognizable” and not dismissed. Judge Whyte also noted that even though…