FILED
NOT FOR PUBLICATION MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICK GRAY, No. 10-56824
Petitioner - Appellant, D.C. No. 2:10-cv-03896-ODW-
MLG
v.
DAVID B. LONG, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted May 8, 2013
Pasadena, California
Before: PREGERSON and FISHER, Circuit Judges, and DANIEL, District
Judge.**
Rick Gray appeals the district court’s dismissal of his petition for a writ of
habeas 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”
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Wiley Y. Daniel, Senior United States District Judge for
the District of Colorado, sitting by designation.
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).
To the extent Gray’s federal IAC claim rests on the three other alleged
deficiencies not fairly presented to the California Supreme Court – the failures to
make timely objections, to conduct a proper investigation or to object to illegally
obtained evidence – they are not exhausted. On remand, Gray must decide whether
he wishes to pursue his IAC claim limited to the two deficiencies fairly presented
to the California Supreme Court or whether he wishes to return to state court in an
2
attempt to exhaust the broader IAC claim. See Jefferson v. Budge, 419 F.3d 1013,
1015-16 (9th Cir. 2005).
2. The district court concluded that Gray had not exhausted Claim Four,
which alleges a violation of Gray’s right to be present during the discussion of how
to respond to the question from the jury. But Gray’s state petition alleged that he
was denied the “right to be present at any stage of the proceeding that is critical”
and that “[t]he court’s decision to refuse the jury’s request was denied without
Gray’s knowledge or presence, and violated Gray’s right to trial by jury and due
process.” Particularly in light of the lenient standards to which pro se pleadings
are held, see Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008), Gray
adequately stated a right to be present claim. This claim was fairly presented to the
state court and is exhausted. See Villalobos, 799 F.2d at 1320-21.
VACATED AND REMANDED.
3