FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2005 judgment of conviction entered against him in the Shasta County Superior Court for attempted second degree robbery, criminal threat, assault with a deadly weapon, possession of a deadly weapon, possession of a firearm, illegal possession of ammunition, and exhibiting a deadly weapon. On April 30, 2008, this court ordered petitioner to file an amended petition, clarifying his claims for relief and identifying those claims that had been presented to the California Supreme Court. Petitioner was also advised that if he was proceeding with both exhausted and unexhausted claims, he could file a motion for a stay and abeyance with respect to his federal petition. Petitioner was provided the legal requirements for obtaining a stay and abeyance. Now before the court is petitioner's amended petition, his motion styled, "Motion In Limine," and a motion for stay and abeyance.
I. Petitioner's Claims and Exhaustion of State Court Remedies
In his amended petition, petitioner sets forth the following grounds for relief: (1) the trial court imposed illegal enhancements by relying upon petitioner's prior attempted murder conviction that was time-barred, and a 1975 arson conviction that should have been reduced to a misdemeanor; (2) his conviction was obtained through the use of evidence that was the product of an illegal search and seizure; (3) his trial counsel provided ineffective assistance of counsel by conspiring with the district attorney and Probation Department and providing them with confidential information; (4) petitioner was subjected to the "[d]enial of reasonable bail, due process and equal protection" which prevented him from "actively participat[ing] in the location of favorable witnesses and providing evidence that would exonerated petitioner . . . ."*fn1 (Am. Pet. at 6.)
There is no indication in the amended petition that the claims set forth above were ever presented to the California Supreme Court. However, the court is aware from petitioner's previous filings, that a petition for review was filed on his behalf with the California Supreme Court.*fn2 In that petition for review, the following arguments were advanced on petitioner's behalf: (1) there was insufficient evidence to support the assault conviction; (2) the trial court's imposition of a lifetime parole term should be stricken; and (3) the trial court abused its discretion by declining to dismiss one of petitioner's two prior strikes. It is arguable that this third argument is sufficiently similar to petitioner's present federal habeas claim challenging the use of his prior convictions for purposes of enhancing his sentence. However, in the petition for review it was argued that the reliance on the two prior convictions was an abuse of the trial court's discretion under California's Three Strikes Law. Therein, petitioner cited only state court decisions and did not assert a violation of the U.S. Constitution.
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting them to the federal court. See Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986). A federal claim is fairly presented if the petitioner has described the operative facts and legal theory upon which his claim is based. See Bland v. California Dep't of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). "[I]t is not enough . . . that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982). As a rule, the "mere similarity of claims is insufficient to exhaust." Duncan v. Henry, 513 U.S. at 365-66. A claim for relief in state court must include reference to a specific federal constitutional right, as well as, a statement of the facts which entitle the petitioner to relief. Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999).
The court finds that petitioner has not exhausted his claims by fairly presenting them to the California Supreme Court. Indeed, none of the claims in the amended federal petition appear to have been presented to the California Supreme Court. In addition, petitioner did not state any federal constitutional basis for challenging the enhancement of his sentence under California's Three Strikes Law in his petition for review before the highest state court. Therefore, the court will recommend that the amended petition be dismissed for failure to comply with the exhaustion requirement.
Petitioner has filed a motion for a stay and abeyance, merely stating that he seeks a stay to present the claims contained in his amended habeas petition to the California Supreme Court. Petitioner does not address any of the requirements for obtaining a stay and abeyance specified by the U.S. Supreme Court in Rhines v. Weber, 544 U.S. 269, 277 (2005).*fn3 In addition, because the amended petition before this court contains only unexhausted claims, a stay is not appropriate. As one court recently noted in this regard, Rhines presupposes the existence of a mixed petition. Jackson v. Roe, 425 F.3d 654, 659-661 (9th Cir. 2005) ("Rhines applies to stays of mixed petitions"). When the petition at issues is not mixed, but fully unexhausted, the stay and abeyance procedure discussed in Rhines does not apply. Rather, in such situations, Rose still requires dismissal of the entire petition. See Raspberry v. Garcia, 448 F.3d 1150, 1151, 1154 (9th Cir. 2006) (amended petition does not relate back to original petition that District Court dismissed as wholly unexhausted); Culver v. Director of Corrections, 450 F. Supp. 2d 1135, 1141 (C.D. Cal. 2006) (amended petition does not relate back to original petition that "was dismissed in its entirety as fully unexhausted"); Pitman v. Runnels, 2007 WL 4940289 (C.D. Cal); Phipps v. Evans, 2008 WL 540821 (E.D. Cal) (Unlike Rhines, Phipps presented a completely unexhausted petition, rather than a mixed petition.)
Brown v. Dexter, No. CV 08-01119-SGL (VBK), 2008 WL 4384181 at *4 (C.D. Cal. Aug. 21, 2008). Therefore, the motion for stay and abeyance should be denied.
Petitioner has also filed a motion styled, "Motion In Limine," in which he requests that this court direct the Shasta County Superior Court to "resolve the issues" raised in the habeas petition filed in that court which was denied by the Superior Court on December 4, 2006. (Mot. in Limine at 1.) The federal court lacks authority to compel a state court to reconsider its ruling in a habeas petition. In addition, regardless of the Superior Court's denial of relief petitioner was not prevented from exhausting his claims by filing a habeas petition with the California Supreme Court. See Nino v. Galaza, 183 F.3d 1003, 1006, n.2 &3 (9th Cir. 1999).
In accordance with the above, IT IS HEREBY RECOMMENDED that:
1. The amended petition filed on July 18, 2008 (Doc. No. 20), be dismissed and this action be dismissed for failure to comply ...