ORDER AND 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 13, 2008, the undersigned ordered respondent to file a response to the petition. On February 4, 2009, respondent filed the pending motion to dismiss, arguing that petitioner failed to exhaust all of his federal constitutional claims by fairly presenting them first to the California Supreme Court. On February 24, 2009, petitioner filed a timely opposition to the motion. Respondent has not filed a reply.
In 2007, a Sacramento County Superior Court jury found petitioner guilty of first-degree residential burglary. The jury also found a number of sentencing enhancement allegations to be true. In a bifurcated proceeding, the trial judge found that petitioner had suffered two prior serious felony convictions and sentenced him to thirty-five years to life in state prison. On April 21, 2008, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. On June 25, 2008, the California Supreme Court denied review. (Pet. at 2; Resp't's Lodged Docs. 1-5.)
On or about September 11, 2008, petitioner filed the instant federal petition raising the following three claims:
Ground one: Petitioner was denied his Sixth Amendment right of confrontation, due process of law, and a fair trial by the introduction of prejudicial hearsay testimony.
Ground two: Petitioner contends his guaranteed right under the Sixth Amendment to the United States Constitution was severely abridged . . . [and that he was denied effective assistance of counsel during sentencing].
Ground three: Petitioner contends the punishment imposed violates the Eighth Amendment's proscription against cruel and unusual punishment under the United States Constitution.
RESPONDENT'S MOTION TO DISMISS
Respondent argues that petitioner's federal habeas petition should be dismissed because he failed to exhaust his state judicial remedies prior to filing his petition in federal court. Specifically, respondent contends that a comparison of petitioner's petition for review to the California Supreme Court and petitioner's federal petition for writ of habeas corpus demonstrates that petitioner failed to exhaust the second and third claims of his pending federal petition. Respondent argues that petitioner must satisfy the exhaustion requirement by providing the California Supreme Court with a full and fair opportunity to consider all of his claims before presenting them to a federal court and that the California Supreme Court has not had such an opportunity. Accordingly, respondent concludes that the instant petition should be dismissed. (Resp't's Mot. to Dismiss at 2-3 & Lodged Doc. 5.)
In opposition to respondent's motion to dismiss, petitioner argues that he has exhausted his state judicial remedies. Specifically, petitioner contends that the State of California filed an information against him and his co-defendant Roosevelt Leon Cathey alleging that both defendants had suffered two prior strikes. According to petitioner, their trial court and direct appeal case numbers were the same. Petitioner has attached to his opposition a petition for review filed with the California Supreme Court on Mr. Cathey's behalf. Therein, Mr. Cathey did appear to argue to the California Supreme Court that he had received ineffective assistance of counsel and that his right to be free from cruel and unusual punishment under the Eighth Amendment had been violated. Petitioner argues that he should not have to re-exhaust these claims. In the alternative, petitioner argues that if he does need to exhaust the second and third claims of his federal petition, the court should construe his petition as a "mixed" petition and grant him a stay and abeyance. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 1-2 & Ex. A.)
I. Exhaustion of State ...