FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254.*fn1 Petitioner challenges a May 31, 2006 judgment of the Lassen County Superior Court, contending he was convicted and sentenced by plea bargain for the wrong offense under the wrong statute. Pet. at 7. Respondent moves to dismiss on the ground that petitioner's sole claim for relief is unexhausted. For the reasons explained below, the motion must be denied.
A district court may not grant a petition for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State," or unless there is no State corrective process or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by presenting the "substance of his federal habeas corpus claim" to the state courts. Picard v. Connor, 404 U.S. 270, 278 (1971) (no exhaustion where the petitioner presented operative facts but not legal theory to state courts); 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 claim is unexhausted if any state remedy is available. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (petitioner must seek discretionary review from state court of last resort); Roberts v. Arave, 874 F.2d 528, 529 (9th Cir. 1988) (no exhaustion where state supreme court referred petitioner's appeal of trial court's denial of post-conviction relief to lower appellate court and petitioner failed to appeal lower court's disposition of that appeal to state supreme court). Unless the respondent specifically consents to the court entertaining unexhausted claims, a petition containing such claims must be dismissed. See 28 U.S.C. § 2254(b)(3); Picard, 404 U.S. at 275. For a California prisoner to exhaust, he must present his claims to the California Supreme Court on appeal in a petition for review or 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); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (to exhaust, prisoner must present claims on appeal to California Supreme Court in a petition for review).
Petitioner filed a petition for writ of habeas corpus with the California Supreme Court on February 14, 2008. Resp.'s Mot. to Dism., Docs. Lodg. in Supp. Thereof ("Lodg. Doc."), Lodg. Doc. 3. That petition also raises the claim that petitioner was convicted and imprisoned for the wrong crime under the wrong statute. Lodg. Doc. 2.Respondent asserts that as of June 20, 2008, the date of filing his motion to dismiss, there was no decision by the California Supreme Court. Thus, respondent contends the petition must be dismissed because it contains an unexhausted claim.
On July 23, 2008, however, petitioner requested that the court take judicial notice that the California Supreme Court denied his petition on July 16, 2008. That request is granted. See Fed. R. Evid. 201. Since the California Supreme Court petition is no longer pending, it appears that petitioner has now exhausted his state judicial remedies. Respondent has not challenged or otherwise responded to petitioner's request for judicial notice. It therefore appears that respondent does not dispute that petitioner has now exhausted his state judicial remedies.
In light of the foregoing, the court concludes that respondent's motion to dismiss should be denied.
Accordingly, it is ORDERED that petitioner's request for judicial notice is granted. Further, it is hereby RECOMMENDED that:
1. Respondent's June 20, 2008 motion to dismiss be denied; and,
2. Respondent be directed to file and serve an answer, and not a motion, responding to the application within 60 days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rule 5, Fed. R. Governing § 2254 Cases; and,
3. Petitioner be directed that his reply, if any, be filed and served within 30 days of service of an answer.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to ...