The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondents' motion to dismiss (Doc. 12) this petition as untimely and because petitioner's claims are unexhausted.
Petitioner was convicted of murder, kidnapping, and false imprisonment and sentenced to a life in prison. At a 2004 parole hearing, the Board of Prison Terms ("Board") determined that petitioner was not eligible for parole. On January 1, 2005, petitioner filed a habeas corpus petition in the Solano County Superior Court challenging the denial of parole. That petition was denied April 13, 2005. On May 23, 2005, petitioner filed a petition in the California Court of Appeal raising the same claims. That petition was denied on June 2, 2005. Petitioner has not raised any claims challenging the denial of parole in 2004 to the California Supreme Court.
Petitioner filed another habeas petition in the Solano County Superior Court on February 20, 2007, challenging his underlying sentence. That petition was denied on June 20, 2007. Petitioner then raised this sentence challenge claim in the California Court of Appeal. That petition was denied on September 20, 2007. Finally, in October 2007 petitioner raised his sentence challenge claim to the California Supreme Court. The California Supreme Court denied relief on March 19, 2008.
The instant federal petition was filed on May 16, 2008. Petitioner raises the following claims: (1) violation of Sixth Amendment right to jury trial as to sentencing enhancement; (2) Ex Post facto violation as to "added punishment beyond what Petitioner was originally sentenced to"; and (3) "Fourteenth Amendment's Due Process of Law Clause enforcement of Ex Post facto and Sixth Amendment protections in compliance with Federal Constitution by State authorities."
Respondents argue that the current petition is untimely and raises unexhausted claims.*fn1
Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required before claims can be presented to the federal court in a habeas corpus case. See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 (9th Cir. 2003). "A petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of the claim...; or (2) by showing that at the time the petitioner filed the habeas petition in federal court no state remedies are available to the petitioner and the petitioner has not deliberately by-passed the state remedies." Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted). The exhaustion doctrine is based on a policy of federal and state comity, designed to give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518.
Regardless of whether the claim was raised on direct appeal or in a post-conviction proceeding, the exhaustion doctrine requires that each claim be fairly presented to the state's highest court. See Castille v. Peoples, 489 U.S. 346 (1989). Although the exhaustion doctrine requires only the presentation of each federal claim to the highest state court, the claims must be presented in a posture that is acceptable under state procedural rules. See Sweet v. Cupp, 640 F.2d 233 (9th Cir. 1981). Thus, an appeal or petition for post-conviction relief that is denied by the state courts on procedural grounds, where other state remedies are still available, does not exhaust the petitioner's state remedies. See Pitchess v. Davis, 421 U.S. 482, 488 (1979); Sweet, 640 F.2d at 237-89.*fn2
In addition to presenting the claim to the state court in a procedurally acceptable manner, exhaustion requires that the petitioner make the federal basis of the claim explicit to the state court by including reference to a specific federal constitutional guarantee. See Gray v. Netherland, 518 U.S. 152, 162-63 (1996); see also Shumway v. Payne, 223 F.3d 982, 998 (9th Cir. 2000). It is not sufficient for the petitioner to argue that the federal nature of the claim is self-evident. See Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 904 (9th Cir. 2001). Nor is exhaustion satisfied if the state court can only discover the issue by reading a lower court opinion in the case. See Baldwin v. Reese, 541 U.S. 27, 32 (2004).
Respondents argue that petitioner has not exhausted his state court remedies as to any of the three claims raised in the current federal petition. They note that petitioner has filed only two cases in the California Supreme Court. The first, filed in 2002, related to a state law requirement that he submit a blood sample to prison officials. The second is the habeas petition referenced above he filed in late 2007. As to this petition, respondents argue:
... In the second, filed in 2007, Stringham simply stated that the "Trial court imposed illegal sentence and enhancement and prison system illegally imposed additional terms not imposed by jury and judge's verdict(s)." (citation to exhibits omitted). This statement, without more, is insufficient to constitute exhaustion of any of his claims. First he does not include any language that could conceivably challenge the Board's authority to deny him parole base on his failure to rehabilitate. (footnote omitted). Second, his general allegation that the trial court imposed an illegal sentence and that the prison system "illegally imposed additional terms" did not provide the California Supreme ...