Picazo

MEMORANDUM *

Petitioner Donny Picazo appeals the district court’s denial and dismissal with prejudice of his petition for writ of habeas corpus under 28 U.S.C. § 2254 . Affirming the report and recommendations of a United States Magistrate Judge, the district court held that the admission of the state’s gang expert’s testimony, stating that in his opinion the defendant had committed the crime of attempted murder and had done so for the benefit of a criminal street gang, constituted harmless error. Because the constitutional error committed by admitting the testimony was plainly not harmless and meets the applicable post-AEDPA standard of review, we reverse.

The state urges us not to reach the merits of Picazo’s petition because it contends that the petition raises claims that Picazo failed to exhaust below. The state has advanced two equally meritless exhaustion arguments. First, the state argues that Picazo’s federal habeas petition did not raise the argument that Deputy Mills impermissibly testified that Picazo intended to kill the victim. The text of Picazo’s habeas petition belies this assertion. Picazo’s federal petition contained the exact same legal and factual claims…