                                                                            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                           NOT FOR PUBLICATION                               MAY 21 2013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.




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