FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 2, 2007, the undersigned ordered respondent to file a response to the petition. On January 2, 2008, respondent filed a motion to dismiss on the ground that petitioner failed to exhaust all of his federal constitutional claims by fairly presenting them first to the California Supreme Court. On January 16, 2008, petitioner filed a timely opposition to the motion. Respondent has not filed a reply.
In 2004 an Amador County Superior Court jury convicted petitioner of two counts of committing a forcible lewd act on a child under the age of fourteen years and one count of continuous sexual abuse of a child under the age of fourteen years. (Docs. Lodged by Resp't, Docs. 1-2.) The trial court found that petitioner had suffered two prior convictions and sentenced him to an aggregate prison term of eighty-five years to life. (Id., Docs. 1-2.) On May 31, 2006, the California Court of Appeal for the Third Appellate District affirmed petitioner's conviction. (Id., Doc. 1.) On August 16, 2006, the California Supreme Court denied his petition for review. (Id., Doc. 3.) Petitioner did not pursue any state collateral challenges to his judgment of conviction. (Pet. at 3.)
On September 24, 2007, petitioner filed his petition for writ of habeas corpus in this court raising the following four claims:
Ground one: Trial court erred prejudicially by instructing the jury with CALJIC No. 17.01, violating petitioner's 6th and 14th Amendment rights.
Ground two: Penal Code § 803, sub. (g) violates the Due Process Clause under the United States Constitution, thus violates petitioner's rights.
Ground three: The trial court abused its discretion prejudicially by failing to exclude or limit the evidence of prior sexual misconduct. Ground four: Violation of petitioner's Due Process Clause (sic) and ineffective assistance of trial counsel. (Pet. at 5-6.)
RESPONDENT'S MOTION TO DISMISS
In his very brief motion to dismiss, respondent contends that petitioner failed to exhaust his ineffective assistance of counsel claim, the forth claim of his federal petition, in that he failed to present this claim in its entirety to the state's highest court as required. (Resp't's Mot. to Dismiss at 2-3.) Respondent does acknowledge that petitioner mentioned the ineffective assistance of his trial counsel for failing to raise issues regarding California Evidence Code § 1108 and CALJIC No. 2.50.01 in his petition for review filed with the California Supreme Court. (Id. at 3.) However, respondent maintains that petitioner only made mention of ineffective assistance of counsel in the heading of his argument and never discussed the issue in the body of his argument made to the California Supreme Court. (Id.) Respondent also argues that in his petition for review to the California Supreme Court petitioner did not mention ineffective assistance of counsel with regard to the jury in his case being instructed with CALJIC No. 17.01. (Id.) Respondent maintains that exhaustion requires that the highest state court be presented both the facts underlying a federal constitutional claim as well as the substance of the claim. (Id.) Respondent concludes that petitioner's federal petition must be dismissed due to his failure to exhaust state remedies with respect to his ineffective assistance of counsel claim after first giving him the opportunity to further amend the petition to delete that unexhausted claim. (Id. at 4-5.)
II. Petitioner's Opposition
In his opposition to respondent's motion to dismiss, petitioner argues that he provided the California Supreme Court with a full and fair opportunity to consider his ineffective assistance of counsel claim in his petition for review filed with that court. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 2-4.) Specifically, petitioner argues that in both the heading and in the body of the argument he presented to that court he made clear that he was claiming that he had received ineffective assistance of trial counsel in violation of his federal constitutional rights. (Id. at 6.) Petitioner concludes that respondent's motion to dismiss lacks merit and is frivolous. (Id. at 11.)
I. Exhaustion of State ...