FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss this action on the ground that petitioner failed to exhaust his state remedies. Petitioner moves to stay and abey his petition until he has exhausted his state court remedies. For the reasons explained below, the court finds that both motions must be denied.
Petitioner was convicted in the Solano County Superior Court of rape in concert, rape by the use of intoxicants, and rape of an unconscious victim. Resp.'s Mot. to Dism. ("Resp.'s Mot"), Ex. 1. He was sentenced to seven years in state prison. Id.
Petitioner appealed to the California Court of Appeal, First Appellate District, which affirmed the judgment on May 2, 2007. Id. He next filed a petition for review in the California Supreme Court, which was denied on July 11, 2007. Resp.'s Mot., Ex. 2.
Petitioner filed a habeas petition in the Solano County Superior Court on June 11, 2008, and a supplemental petition adding two claims on July 25, 2008, which were denied on August 7, 2008. Pet'r's Reply and Mot. to Stay and Abey ("Pet'r's Reply Mot."), Ex. A; Resp.'s Mot., Ex. 3. Petitioner filed a habeas petition in the California Court of Appeal on August 26, 2008, and a supplemental petition adding two claims on September 16, 2008, which were denied on September 25, 2008. Pet'r's Reply Mot., Ex. B; Resp.'s Mot., Ex. 3. In denying the petition, the Court of Appeal wrote that, as to the claims contained in the supplemental petition, "[p]petitioner does not demonstrate that he has exhausted his habeas remedy in the superior court.... Accordingly, said claims are denied without prejudice to being raised in the first instance in the sentencing court." Pet'r's Reply Mot., Ex. C. Petitioner then filed another habeas petition containing the two claims in the Solano County Superior Court on October 15, 2008, which was denied on December 15, 2008. Id., Ex. D. Petitioner filed another habeas petition in the California Court of Appeal on January 26, 2009, which was denied on January 29, 2009. Id., Ex. E.Finally, petitioner filed a habeas petition in the California Supreme Court on May 11, 2009. Id. The petition was denied on October 14, 2009. Ricardo (Robert D.) on H.C., 2009 Cal. LEXIS 10811 (Cal. Oct. 14, 2009).
This petition was filed on October 3, 2008.
II. Exhaustion of State Remedies
A district court may not grant a petition for a writ of habeas corpus unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). Exhaustion of state remedies requires that petitioners fairly present federal claims to the highest state court, either on direct appeal or through state collateral proceedings, in order to give the highest state court "the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations omitted). "[A] state prisoner has not 'fairly presented' (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law." Lyons v. Crawford, 232 F.3d 666 (9th Cir. 2000), amended by, 247 F.3d 904 (9th Cir. 2000).
The court may stay a mixed petition, i.e., one containing exhausted and unexhausted claims, to allow a petitioner to present unexhausted claims to the state courts. Rhines v. Weber, 544 U.S. 269, 277 (2005).
Respondent argues that petitioner has not exhausted his claims because the instant habeas petition raises issues that were not raised in petitioner's initial appeal to the California Court of Appeal or his petition for review in the California Supreme Court. See Resp.'s Mot. at 2. But respondent ignores the three petitions that petitioner filed in California courts on October 15, 2008, January 26, 2009, and May 11, 2009. Respondent's motion to dismiss was filed on June 15, 2009, more than a month after the last of these petitions was filed. Id. at 3. Curiously, the motion fails to mention these three petitions, even though petitioner had already filed copies of the rulings on the first two petitions as exhibits to his May 5, 2009 motion to stay, in which he wrote that he was "in the process of proceeding in the California Supreme court [sic] for his final exhustion [sic]." See Pet'r's Reply Mot. at 2.
Petitioner has now filed with the court a copy of his petition to the California Supreme Court raising all of the claims in the instant petition. See Id., Ex. E. The California Supreme Court denied his petition on October 14, 2009. Ricardo (Robert D.) on H.C., 2009 Cal. LEXIS 10811. While petitioner's claims may not have been exhausted at the time that he filed the instant petition, they are now exhausted. See Castro v. Long, 2006 U.S. Dist. LEXIS 58923 (E.D. Cal. Aug. 17, 2006). Respondent's motion to dismiss should be denied.
Petitioner moved the court to stay the instant petition and hold it in abeyance while he exhausted his claims. Pet'r's Reply Mot. at 2. As petitioner's claims are now exhausted, this request is moot. See Genniro v. Salazar, 2008 U.S. Dist. LEXIS 52903 (C.D. Cal. July 9, 2008).
Accordingly, it is hereby RECOMMENDED that:
1. Petitioner's May 5, 2009 motion to ...