ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent has moved to dismiss the petition on the ground that its claims are not exhausted. Petitioner has filed a motion for the appointment of counsel.
Petitioner pled guilty to one count of driving under the influence causing injury and admitted that he had suffered one prior strike in exchange for the prosecution's agreement to strike three additional strike allegations and dismiss another count. The Butte County Superior Court selected the upper term and sentenced petitioner to a total term of six years in prison. Lodged Document (Lodg. Doc.) 1 at 1.
Through counsel, petitioner appealed his sentence, arguing that the imposition of the upper term violated his Sixth and Fourteenth Amendment rights under Cunningham v. California, 549 U.S. 270 (2007). The Court of Appeal dismissed the appeal, however, because petitioner had failed to obtain a certificate of probable cause and found, in the alternative, that the claim of sentencing error was not well taken. Lodg. Doc. 1 at 4-6, 7-10.
Acting in pro per, petitioner filed a petition for review in the California Supreme Court raising three grounds: the court erred in denying his motion to discharge counsel; trial counsel refused to file a motion to strike his prior convictions; and counsel was ineffective in failing to challenge the validity of the four charged strikes. Lodg. Doc. 3 (Case No. S155722). The Supreme Court denied the petition for review. Lodg. Doc. 4.
Petitioner also filed a petition for a writ of habeas corpus in the California Supreme Court, challenging Stanislaus County convictions used as strikes in the Butte County prosecution. Lodg. Doc. 5 (Case No. S144128). This was denied. Lodg. Doc. 6.
The California Supreme Court's public docket shows only these two actions filed on petitioner's behalf. See Cal. Supreme Ct. Docket (available on line; accessed 9/02/08).
The instant petition challenges the Butte County conviction for driving under the influence causing injury, and raises three grounds: (1) the trial judge refused to allow petitioner to file a motion to challenge the validity of the Stanislaus County strikes; (2) petitioner's plea was obtained through trial counsel and trial court coercion and petitioner's motion to discharge counsel was denied; and (3) trial counsel was ineffective in failing to file motions, obtain documents and present legal defenses.*fn1
II. The Exhaustion Of State Remedies
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir 1985). There are three elements to the fair presentation requirement:
A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim. A petitioner must alert the state courts to the fact that he is asserting a federal claim in order to fairly and fully present the legal basis of the claim.
Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).
Respondent argues that the issues in the petition are not exhausted because petitioner did not present them to the California Supreme Court through the proper vehicle.*fn2
In Castille v. Peoples, 489 U.S. 346, 348, 351-52 (1989), the Supreme Court considered whether a claim brought in a petition for allocatur before the Pennsylvania Supreme Court could satisfy the requirement of fair presentation because of the discretionary nature of allocatur review in Pennsylvania. The Court held that the fair presentation requirement has not been met "where the claim has been presented for the first and only time in a procedural context in which its merits will not be considered ...