The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Rondell L. Webb, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On February 28, 2008, the Magistrate Judge filed Findings and Recommendations recommending that Respondent's motion to dismiss be granted and the petition dismissed, which were served on all parties and contained notice that any objections to the Findings and Recommendations were to be filed within fifteen days. Webb filed objections to the Findings and Recommendations. Webb objects to the finding that his second, fourth and fifth grounds are procedurally defaulted; that his first ground is unexhausted; and his third claim was not ripe.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, with particular attention to those portions relevant or pertinent to the objections raised, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis.
In his final amended petition, Webb raised five grounds: 1) he was denied the right to have his prison term fixed and his release date established pursuant to Cal. Penal Code § 3041(a) when the Board of Prison Terms (now known as the Board of Parole Hearings and referred to in the Findings and Recommendations as "BPH") panel wrongfully based its denial on the conclusion that petitioner posed an unreasonable threat to society, relying solely on the commitment offense; 2) the BPH panel did not consider all relevant evidence by failing/refusing to review the terms of his plea contract; 3) the length of his prison term was not calculated under the Indeterminate Sentencing Law ("ISL") or the Determinate Sentencing law ("DSL") when the BPH panel failed to conduct a proportionality analysis and base its findings/decision on offenses of similar gravity and magnitude; 4) the state and the BPH breached the terms of his plea agreement by recommending a longer sentence and not enforcing the terms of the plea; and 5) dismissed counts were used after petitioner had entered his plea.
The Findings and Recommendations recommend that the first ground be dismissed for failure to fully exhaust state court remedies. Exhaustion of state remedies requires the petitioner to fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). A petitioner fairly 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. See 28 U.S.C. § 2254(e); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999). A petitioner must alert the state courts to the fact that he is asserting a federal claim in order to fairly present the legal basis of the claim. Duncan, 513 U.S. at 365-66. In the Ninth Circuit, a petitioner must make the federal basis of the claim explicit either by referencing specific provisions of the federal Constitution or statutes, or citing to federal case law. Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000). Mere similarity of claims between a state law claim and a federal law claim is insufficient for exhaustion purposes. Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). In order to present the substance of a claim to a state court, the petitioner must reference a specific federal constitutional provision as well as a statement of facts that entitle the petitioner to relief. Gray v. Netherland, 518 U.S. 152, 162--163 (1996).
As the Magistrate Judge explained, in his presentation of this claim to the California Supreme Court it was framed solely in terms of the proper interpretation of a state statute. As such it is beyond the purview of this Court in a federal habeas proceeding. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot re-examine a state court's interpretation and application of state law). It is also presumed that the state court knew and correctly applied state law. See Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). Consequently, the Magistrate Judge correctly found that Webb's first ground for relief is unexhausted.
The Findings and Recommendations recommend dismissal of the second, fourth and fifth grounds on the basis that they are procedurally barred. In denying his second petition for habeas relief in which these claims were raised, the California Supreme Court cited In re Clark, 5 Cal.4th 750 (1993), People v. Duvall, 9 Cal.4th 464, 474 (1995), In re Swain, 34 Cal.2d 300, 304 (1949), In re Miller, 17 Cal.2d 734 (1941), and In re Robbins, 18 Cal.4th 770, 780 (1998), which clearly and unequivocally indicates that the petition was denied on procedural grounds, not on the merits. See Harris v. Superior Court, 500 F.2d 1124, 1127--29 (9th Cir. 1974) (en banc). These citations indicate that the California Supreme Court considered the petition as untimely, successive, or did not plead facts with sufficient particularity to warrant the granting of relief.
Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims · · ·." Sawyer v. Whitley, 505 U.S. 333, 338 (1992).
First announced as a broad concept in Wainwright v. Sykes, 433 U.S. 72, 97, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the procedural bar doctrine "has its historical and theoretical basis in the 'adequate and independent state ground' doctrine." Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (citing Wainwright, 433 U.S. at 78-79, 97 S.Ct. 2497); see also Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 80 L.Ed. 158 (1935). The adequate and independent state ground doctrine provides that federal courts "will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both independent of the merits of the federal claim and has an adequate basis for the court's decision." Harris, 489 U.S. at 260, 109 S.Ct. 1038.
In this case the California Supreme Court invoked several procedural rules without specifying which rule applied to which claim. Consequently, only if all the procedural rules invoked are independent and adequate state law grounds is Webb procedurally barred. See Washington v. Cambra, 208 F.3d 832, 834 (9th Cir. 2000). Since Robbins, the procedural rules laid down in Clark, Swain, and Miller are considered independent. See Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003). Those rules are not, however, necessarily adequate in the sense that it has not been definitively held that they are consistently applied. Id. Once, as here, the state has asserted the existence of a procedural bar, the burden shifts to the petitioner (Webb) to place that defense at issue. Id., at 586. This may be accomplished in one of two ways: by asserting "specific factual allegations that demonstrate the inadequacy of the state procedure" by citing relevant cases, or by simply challenging the ...