FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Respondent moves to dismiss on the ground petitioner failed to exhaust state remedies. Petitioner opposes and requests that this action be stayed while he exhausts the available state remedies with respect to some of his claims. He also requests leave to file an amended petition containing only exhausted claims. For the reasons explained below, the respondent's motion to dismiss and petitioner's motion to stay must be granted in part and denied in part, and petitioner's motion to file an amended petition must be granted.
On January 10, 2005, petitioner was convicted of one count of second degree murder in the Sacramento County Superior Court. Resp.'s Mot. to Dism., Docs. Lodged in Supp. Thereof ("Lodg. Doc."), 1. He appealed, arguing that the trial court erred in the following ways:
(1) denying petitioner's pre-trial request for new counsel; (2) failing to hold a post-verdict hearing on petitioner's request for new counsel; and (3) refusing to permit petitioner to file, pro se, a motion for a new trial. Lodg. Doc. 2. On May 12, 2006, the appellate court affirmed. Id. Petitioner filed a document in the California Supreme Court styled, "Petition for Review." Lodg. Doc. 3. However, instead of seeking review of the appellate court's decision, he claimed that appellate counsel's refusal to file a petition on his behalf and her withdrawal from representing him violated his Sixth Amendment right counsel. Id., at 2-3. Petitioner's appellate counsel wrote to him explaining that she did not believe there was any basis for seeking the discretionary review of the California Supreme Court and sent him the transcripts of the proceedings in his case. Id., at 6.
On July 26, 2006, the California Supreme Court construed the document as a petition for review and denied it without citation or explanation. Lodg. Doc. 4. On May 11, 2007, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. He raised the following grounds for relief: (1) the trial court permitted the jury to rely on the same underlying facts to find that there existed two distinct statutory grounds for enhancing petitioner's sentence in violation of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment; (2) the trial court violated petitioner's rights under the Sixth Amendment by refusing to permit counsel to present evidence in support of the theory of imperfect self-defense; (3) the trial court failed to give a complete instruction on the definition of "malice" and, other than referring the jury to the instructions already given, refused to respond to the request for an explanation of the difference between malice aforethought and premeditation;" (4) the trial court gave a faulty reasonable doubt instruction in violation of the Sixth and Fourteenth Amendments; (5) trial counsel was ineffective by failing to retain an expert to contest the prosecution's evidence concerning the distance from which the victim was shot and other evidence based on the autopsy report; (6) failing to investigate the mental health history of Scott Appleby in order to impeach him; (7) failing to attempt to locate a witness who could provide exculpatory information about the shooting; (8) failed to argue that the prosecution's key witness, Scott Appleby, was an accomplice to the murder; (9) failed to call Harry and Judith Jones, who would have testified to petitioner's reputation for honesty and to facts showing that Scott Appleby was not a credible witness; (10) failed to present evidence supporting a theory of imperfect self-defense; (11) failing to call petitioner's girlfriend, Tanisha Eagle, to testify to an alibi and to facts contradicting the testimony of one of the detectives who testified for the prosecution; (12) by failing to file a number of motions which would have given counsel access to material, exculpatory evidence; (13) appellate counsel was ineffective by including in her brief an assertion that petitioner had requested someone store a rifle for him, even though there was no evidence to that effect at trial; (14) by failing to file a habeas petition with the appellate brief; (15) appellate counsel was ineffective by failing to inform petitioner of the time limit for seeking reconsideration in the appellate court and by refusing to file a petition for review in the California Supreme Court; and, (16) appellate counsel's failure to raise a number of claims on direct appeal. On May September 19, 2007, the California Supreme Court denied relief, citing in re Dixon, 41 Cal.2d 756 (1953); People v. Duvall, 9 Cal.4th 464, 474 (1995); In re Swain, 34 Cal.2d 300, 304 (1949).
On July 23, 2007, petitioner filed a petition for a writ of habeas corpus in this court. In it, he makes the following claims for relief: (1) the trial court denied petitioner's request for substitute trial counsel in violation of the Sixth Amendment; (2) trial court denied petitioner's post-verdict request for substitute counsel in violation of the Fourteenth Amendment; (3) trial court denied petitioner's request to file a motion for a new trial and a continuance to file such a motion pro se in violation of the Fourteenth Amendment; (4) the trial court improperly answered the jury's question about "malice aforethought," and "premeditation" thereby shifting the burden of proof to the defense in violation of the Fourteenth Amendment; (5) relying on the same facts to enhance petitioner's sentence under two different statutes violated petitioner's rights under the Sixth and Fourteenth Amendments; (6) the trial court's jury instructions on manslaughter, voluntary manslaughter, and involuntary manslaughter incorrectly reflected the state of the law in violation of the Due Process Clause of the Fourteenth Amendment; (7) permitting the prosecution to admit into evidence a t-shirt found on the vehicle of Nick Castello only weeks before trial violated the Due Process Clause of the Fourteenth Amendment; (8) the prosecutor engaged in misconduct during closing argument when he suggested that all African Americans have short, kinky hair, and thus the jury need not consider the appearance of petitioner's hair at the time of the crime in violation of the Due Process Clause of the Fourteenth Amendment; (9) the prosecution violated the Due Process Clause of the Fourteenth Amendment when he failed to disclose to the defense that a t-shirt with a red paint stain in the chest area had been found on Nick Castello's vehicle; (10) during closing argument, the prosecutor commented that petitioner could have, but did not, call Tanisha Eagle and Anthony Woods as witnesses in violation of the Due Process Clause of the Fourteenth Amendment; (11) the prosecutor's comment that it did not matter whether Scott Appleby or Nick Castello picked up a shell casing because one of them buried it relieved the prosecution of its burden of proof in violation of the Due Process Clause of the Fourteenth Amendment; (12) trial counsel failed to retain an expert to contradict the prosecution's evidence about the distance from which the victim was shot and other facts based on the autopsy report; (13) trial counsel failed to investigate the mental health history and current mental state of a key prosecution witness, Scott Appleby, in violation of the Sixth Amendment; (14) trial counsel was ineffective by failing to investigate and locate Anthony Woods, who had information beneficial to the defense; (15) trial counsel was ineffective by failing to call Tanisha Eagle to testify to an alibi; (16) trial counsel was ineffective by failing to call Harry and Judith Jones to testify about petitioner's character for truthfulness and honesty and Scott Appleby's character for deceit; (17) trial counsel was ineffective by failing to object to instructing the jury only on the heat of passion aspect of voluntary manslaughter, as opposed to imperfect self-defense; (18) trial counsel was ineffective by failing to argue that Scott Appleby was an accomplice or an aider and abettor; (19) the trial court denied petitioner a fair trial by refusing to instruct the jury on involuntary manslaughter; (20) trial counsel was ineffective by failing to investigate the possibility that someone else was the killer, especially since witnesses were unable adequately to describe the shooter; (21) trial counsel was ineffective by failing to offer any mitigating evidence during sentencing, even though evidence of petitioner's good character was available; (22) counsel deprived petitioner of the right to be present at his trial by waiving petitioner's right to be present during an in camera hearing; (23) appellate counsel was ineffective by including in the appellate brief a fact that was not part of the trial record and by denying that petitioner and trial counsel had a personality conflict; (24) appellate counsel was ineffective by failing promptly to alert petitioner of the time for seeking rehearing following the appellate court's decision affirming the trial court's judgment; (26) appellate counsel was ineffective by failing to raise on direct appeal grounds 4 through 21 alleged in the federal petition.
Section 2254 of Title 28 of the United States Code imposes an exhaustion requirement*fn1 on state prisoners seeking federal habeas relief:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
It is important to note that federal habeas review is available for a state prisoner's federal claims, and that the exhaustion requirement is rooted in the doctrines of comity and federalism. Ex parte Royall, 117 U.S. 241, 251 (1886) (creating a discretionary exhaustion requirement in order to avoid "unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution . . . ."); Rose v. Lundy, 544 U.S. 509, 515-516 (1982) (state and federal courts have responsibility to enforce federal law, and "when a prisoner alleges that his confinement violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief."). Thus, a petitioner must give the state courts a fair opportunity to rule on his claims. This means he must present both the operative facts and the federal legal theory to the highest state court permitted under the state's rules. Picard v. Connor, 404 U.S. 270, 278 (1971); see also Duncan v. Henry, 513 U.S. 364, 365 (1995) (to exhaust a claim, a state court "must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution"). A petitioner must present his claims pursuant to the state's established procedures so as to ensure that the courts may reach the merits. See Castille v. Peoples, 489 U.S. 346 (1989) (claims raised in petition for allocatur but not in state post-conviction proceedings unexhausted where review on allocatur was discretionary but review in post-conviction proceedings was not); see also Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (presenting in habeas corpus claims cognizable only in motion for post-conviction relief pursuant to rule of criminal procedure does satisfy exhaustion requirement). A California prisoner must present his claims to the California Supreme Court on appeal in a petition for review or on post-conviction in a petition for a writ of habeas corpus. See Carey v. Saffold, 536 U.S. 223, 239-40 (2002) (describing California's habeas corpus procedure).
A mixed petition, i.e., one containing exhausted and unexhausted claims, ordinarily must be dismissed. Rose v. Lundy, 455 U.S. 509, 522 (1982). However, the court may stay a mixed petition to allow a petitioner to present unexhausted claims to ...