The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
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. Pending before the court is respondent's motion to dismiss on grounds that not all claims are exhausted. After carefully considering the record, the court recommends that respondent's motion be denied.
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). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3).*fn1 A waiver of exhaustion, thus, may not be implied or inferred. 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, 92 S.Ct. 509, 512 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).
A claim is fairly presented to the state courts when a petitioner references the specific federal constitutional guarantee that was violated, as well as a statement of the facts that entitle the petitioner to relief. Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir.2008) (citing Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074 (1996)).
On June 12, 2006, petitioner filed the original petition and a motion to stay proceedings in order to exhaust additional claims. On February 2, 2007, the district court granted this motion and this action was administratively stayed. On January 29, 2009, petitioner filed an amended petition in which he represented that all claims were now exhausted. The amended petition raises the following claims: 1) admission of evidence of gang membership violated his right to due process; 2) exclusion of relevant exculpatory evidence violated his right to due process; 3) prosecutorial misconduct (2 claims); 4) denial of right to an impartial jury; 5) ineffective assistance of counsel (2 claims).
On February 9, 2009, the undersigned ordered respondent to file a response to the amended petition. On September 15, 2009, respondent filed the pending motion to dismiss. Respondent argues that one of petitioner's prosecutorial misconduct claims is unexhausted.
In the amended petition, petitioner first argues that the prosecutor committed misconduct during closing argument when he argued that petitioner's claim of self-defense was recently fabricated. Petitioner next argues that the prosecutor committed misconduct during closing argument when he asked the jurors to imagine the reaction of their neighbors if they were to go home and try to explain why they had acquitted petitioner. Respondent argues that this second claim of prosecutorial misconduct is unexhausted because in his petition for review, where he raised this claim, petitioner made no reference to the federal constitution in support of this claim.
The petition for review began with a section titled "Issues Presented for Review." Respondent's Lodged Document 2, p. 2. In this section, the at-issue prosecutorial misconduct claim was described as follows:
E. Did the prosecutor also commit misconduct in arguing to the jury that they should be influenced by improper factors, such as their neighbors' reaction to an acquittal, and did the trial court fail to cure the prosecutor's misconduct, and did this misconduct violate the Fourteenth Amendment?
In the next section of the petition, titled "Reasons Review Should Be Granted," petitioner described both of the prosecutorial misconduct claims raised in the instant petition then concluded, "Mr. Trillo urges that there was misconduct which violated the Fourteenth Amendment. He urges this Court go grant review." Id., pp. 5-6.
In the section of the petition for review where petitioner argued that the prosecutor committed misconduct by arguing that petitioner's claim of self-defense was recently fabricated, petitioner included a section titled "Governing Law Regarding Prosecutorial Misconduct." Id., pp. 28-29. This section included federal constitutional as well as state law standards regarding prosecutorial misconduct:
"Prosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." People v. Haskett (1982) 30 Cal.3d 841, 866. A prosecutor has a duty to prosecute vigorously. "But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much is duty to refrain from improper methods calculated to product a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629]. Misconduct need not be intentional in order to constitute reversible error. People v. Bolton (1979) 23 Cal.3d 208, 214; People v. Pitts (1990) 223 Cal.App.3d 606, 691.
Under the federal standard, prosecutorial misconduct that renders a trial fundamentally unfair affects a defendant's right to due process of law. United States v. Riebold (1998) 135 F.3d 1226; Cf. Darden v. Wainwright (1986) 477 U.S. 168, 181. Under state law, a prosecutor commits misconduct when he or she uses "deceptive or reprehensible methods to attempt or persuade either the court or the jury." People v. Espinoza (1992) 3 Cal.4th 806, 820; People v. Hill (1998) 17 Cal.4th 800, 819. It is improper for a prosecutor to knowingly argue a false inference to the jury, particularly where the prosecutor was responsible for the jury's ignorance of evidence contradicting the ...