FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus challenging his Yuba County convictions for burglary, robbery, rape in concert, and penetration with a foreign object and the resulting sentence of two hundred eighty-three years to life. Petitioner raises five claims: (1) he was denied his right to confront and cross-examine witness Teresa Oliver about promises made to secure her testimony; (2) his rights were violated when witness Michael Coe told the jury petitioner had been in prison; (3) the trial court erred in failing to instruct on accomplice corroboration; (4) trial counsel was ineffective for failing to correct perjured testimony, in failing to call as witnesses Ashley Young and Teresa Powers, and in failing effectively to cross-examine Rusty Padgett and Teresa Oliver; and (5) the prosecutor committed misconduct in failing to correct the perjured testimony from Rusty Padgett and Teresa Oliver and in stating his personal beliefs in closing argument.
Respondent argues the petition contains both exhausted and unexhausted claims and so should be dismissed. He argues that issues four and five as they relate to witness Teresa Oliver and the second part of issue 5 (improper closing argument) in their current posture have not been fairly presented to the California Supreme Court. He relies on the fact that in petitioner's state habeas proceedings, petitioner's claim of prosecutorial misconduct was limited to the failure to correct Padgett's perjury and on the fact that petitioner has supported his ineffective assistance of counsel and prosecutorial misconduct claims as to Teresa Oliver with the videotape of Oliver's testimony the court directed respondent to provide and with Exhibits E, F, G, H and I, which were not presented to the state courts. Motion to Dismiss (MTD) at 5-7. Respondent also argues that the tape of Oliver's statement was not introduced at trial and so was not part of the state record on appeal and that petitioner has not made the necessary showing to expand the record under Rule 7 of the Rules Governing Habeas Corpus Proceedings.
A. The State And Federal Petitions Compared
In the petition presented to the California Supreme Court, petitioner argued that counsel had been ineffective in several respects. In ground nine of the state petition, petitioner claimed:
Defence counsel had and has in this posision letters written by the prosecutors star witnesses both Teresa Oliver and Mike Coe written long before there testimony at trial. T. Oliver stating that defendant Gore was home with Oliver the night of the crime accused of and was present when Coe and his friends came in and ast if they could leave some stuff . . . , yet counsel never brought the physical evidence to trial when Oliver testified that Coe and Gore were in and out that night. . . . . Counsel failed to raise the issue that . . . Oliver . . . had stated something different in . . . her own writing before they were offered deals. Jury should have been given the oppertunity to see these letters to obstablish the cridibility of witnesses.
Lodged Document (Lodg. Doc.) 5, Ground Nine (reproduced as in original).
In this action, petitioner presents his claims of counsel's ineffectiveness in ground four. He alleges that he asked counsel to question Oliver and to offer the letters she had written to Gore, which suggested he was not involved in the crimes; typed copies of excerpts of these letters are attached as a portion of Exhibit F. Pet. (Docket No. 3) at 143.*fn1 Petitioner also suggests that counsel should have questioned Oliver about her possession of a sum of cash while she was in the jail and a detective's assurance that he would help Oliver claim the money after she went to prison. Id. at 39 & Exs. F (incident report) & G (Oliver letter). Petitioner did ask the court to order respondent to provide a copy of the video of Oliver's interview, which he claimed was relevant to arguments four and five of the petition. See Docket No. 5 at 1-2. Nevertheless, he has not raised counsel's alleged failure to present the Oliver interview to the jury as part of his claim of ineffective assistance of counsel raised in this petition.
Petitioner also raised prosecutorial misconduct in his state supreme court petition. He contended the prosecutor was aware that witness Padgett had told investigators that Gore was not involved in the crimes, but put Padgett on the stand and elicited testimony that Gore admitted to the crime. Lodg. Doc. 5, Ground 8. In addition, he argued that during summation, the prosecutor improperly argued that Gore had not lowered his pants entirely so the victim would not see the tattoo on his thigh, which was his personal belief and not based on the evidence at trial. Petitioner also claimed the prosecutor urged the jurors to put themselves in the victim's place. Id.
In the federal petition, petitioner's claim of prosecutorial misconduct includes the alleged failure to correct Padgett's perjury, but not an alleged failure to correct Oliver's false testimony that she received no benefits for her cooperation. Docket No. 3 at 46. He also argues that during summation, the prosecutor argued that petitioner purposely hid his tattoo during the rape, even though there was no evidence supporting this. Id. at 55-56 & Ex. I (pictures of the tattoo).
In support of the instant action, petitioner notes he was tried twice; the first jury was unable to reach a verdict. Petitioner has provided notes from the first jury as Exhibit H, though he did not attach them to his state habeas petition.
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985).
The state court has had an opportunity to rule on the merits when the petitioner has fairly ...