Moore
Moore v. Small
Opinion
Lead Opinion
MEMORANDUM **
California state prisoner Mitchell Moore appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Reviewing de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we reverse and remand in part and affirm in part.
Moore contends that the district court erred when it dismissed his first petition as completely unexhausted. Moore is correct, because he raised a federal due process claim concerning “bad acts” evidence on direct appeal and then in his petition for review by the California Supreme Court. He argued that not only was the evidence improperly admitted under state law, but it also “was of such quality as to prevent a fair trial,” and he cited Jammal v. Van de Kamp, 926 F.2d 918, 920 (1991) (stating that the improper admission of evidence violates due process when it renders the trial fundamentally unfair). Thus, Moore’s first petition was mixed, and he should have been given the opportunity to abandon his unexhausted claims and proceed on the exhausted one. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir.2000).