Saldivar

MEMORANDUM **

Eric Saldivar appeals the denial of his habeas corpus petition challenging his conviction for the first degree murder of Freddie De La Rosa. We have jurisdiction pursuant to 28 U.S.C. § 2254 and vacate and remand because of intervening authority.

Saldivar raises three claims in his petition. First, Petitioner contends that the trial court’s refusal to instruct the jury on self-defense violated his due process rights. Second, he asserts that the trial court’s admission of the victim’s statement that Petitioner was the shooter violated his due process rights and his Sixth Amendment right to confrontation. Third, Petitioner argues that his due process rights were infringed when the trial court sustained the prosecution’s objection and stated that there was no evidence of a struggle “at this point.” It is clear from the briefing that Petitioner did not raise the third federal claim to the California Supreme Court.

The district court, presumably relying on 28 U.S.C. § 2254 (b)(2), denied all of Petitioner’s claims on the merits without first determining whether he had properly exhausted the claims in state court. This action was permissible at the time. See Padilla v.…