Rick Gray v. David B. Long
Opinion
Opinion
MEMORANDUM
Rick Gray appeals the district court’s dismissal of his petition for a writ of habe-as corpus. The district court concluded that Gray had not exhausted in state court two of his federal habeas claims and dismissed the petition as a “mixed” petition. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we vacate and remand.
1. The district court concluded that Gray had not exhausted Claim Two, which alleges ineffective assistance of counsel (IAC). Of the five alleged deficiencies Gray identified, two were fairly presented to the California Supreme Court: (a) trial counsel’s failure to request severance of the trial so that damaging evidence of Gray’s alleged drug crimes would have been excluded as irrelevant; and (b) trial counsel’s failure to urge the court to allow the jury to view Gray’s ear during deliberation, as the jurors requested. The state habeas petition was sufficient to allow the state court to assess whether these deficiencies, either alone or together, constituted IAC. To the extent Gray’s federal IAC claim rests on these alleged deficiencies, the claim is exhausted. See Kim v. Villalobos, 799 F.2d 1317, 1320-21 (9th Cir.1986).