Whether a subsequent habeas petition, containing only claims which were unexhausted when the initial habeas petition was untimely filed, was second-in-time because the unexhausted claims were not decided on their merits or were unripe or whether the constitutional ineffectiveness of the attorney who filed the petition can be considered, consistent with Castro v. United States, 540 US 375 (2007), to decide whether the petition was second-in-time, despite the language in 28 USC 2254(i)

QUESTION PRESENTED FOR REVIEW Mr. Gutierrez now raises the following question for this Court’s review: Whether a subsequent habeas petition, containing only claims which were unexhausted when the initial habeas petition was untimely filed, was second-in-time because the unexhausted claims were not decided on their merits or were unripe or whether the constitutional ineffectiveness of the attorney who filed the petition can be considered, consistent with Castro v. United States, 540 US 375 (2007), to decide whether the petition was second-in-time, despite the language in 28 USC 2254(i).