FINDINGS AND RECOMMENDATIONS
Petitioner, a civil detainee currently confined at Napa State Hospital, is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 7, 2009, the undersigned ordered respondent to file a response to the petition. On June 24, 2009, respondent filed the pending motion to dismiss, arguing that petitioner has failed to properly exhaust his federal habeas claims by first fairly presenting them to the highest state court. Petitioner has filed an opposition to the motion. Respondent has not filed a reply.
In 1994, in the Glenn County Superior Court, petitioner was found not guilty by reason of insanity of possession of a firearm by a convicted felon. Petitioner does not challenge that underlying criminal conviction in his habeas petition pending before this court. Rather, he challenges the Glenn County Superior Court's subsequent decisions, rendered in proceedings under California Penal Code § 1026.5(b), extending his commitment pursuant to that judgment of conviction. (Pet. at 1-2 & Resp't's Lodged Doc. 1.)
The record before this court establishes as follows. In 2004, the Glenn County District Attorney petitioned the Superior Court to extend petitioner's commitment for two years from August 31, 2004, to August 31, 2006. Following a court trial in February 2005, the Superior Court extended petitioner's commitment to August 31, 2006, as requested by the District Attorney. On appeal, the California Court of Appeal for the Third Appellate District reversed the trial court's decision and remanded the case for further proceedings in light of the decision in In re Howard N., 25 Cal. 4th 117 (2005). After a second court trial in September 2006, the Superior Court found sufficient evidence to sustain the petition and again extended petitioner's commitment to August 31, 2006. (Resp't's Lodged Doc. 1.)
In March of 2006, the Glenn County District Attorney again petitioned the Superior Court to extend petitioner's commitment through August 31, 2008. Following a jury trial held in September of 2006, petitioner was found to suffer from a mental disease, defect, or disorder that made it seriously difficult for him to control his dangerous behavior. It was also found by the jury that he posed a substantial danger of physical harm to others. Based upon those jury findings, the Superior Court again extended petitioner's commitment to August 31, 2008. (Resp't's Lodged Doc. 1.)
On appeal from that determination, petitioner argued that there was insufficient evidence introduced at both trials to support the finding of his serious difficulty in controlling dangerous behavior. On December 11, 2007, the California Court of Appeal for the Third Appellate District affirmed petitioner's ongoing commitment. On January 14, 2008, petitioner filed a petition for review with the California Supreme Court. On February 20, 2008, the petition for review was summarily denied. Petitioner did not file any habeas petitions with the California Supreme Court. (Resp't's Lodged Docs. 1 & 5-6.)
On April 29, 2008, petitioner commenced this action by filing a federal habeas petition, asserting the following five claims: (1) a single psychiatric opinion does not constitute substantial evidence to support the extension of an insanity commitment; (2) the trial court and the District Attorney erred in relying on evidence of petitioner's past mental condition as opposed to his "current mental condition"; (3) experts testified that petitioner needs to take psychiatric drugs, but those drugs actually induce violent behavior; (4) psychiatry and psychology are "pseudo sciences" -- there is no cure for mental illness; and (5) the experts testifying at his commitment trials were improperly motivated by financial gain. (Pet. at 4-11.)
RESPONDENT'S MOTION TO DISMISS
Respondent has moved to dismiss the pending petition, arguing that petitioner failed to exhaust his habeas claims in state court as required. Specifically, respondent notes that petitioner has raises five claims in his pending federal petition. Respondent concedes that petitioner presented these same claims in his petition for review filed with the California Supreme Court. Respondent argues, however, that petitioner failed to raise any of these claims in his appeal filed with the California Court of Appeal. According to respondent, where, as here, a petitioner raises his federal habeas claims for relief for the first and only time to the state's highest court on discretionary review, he has not fairly presented those claims for purposes of the exhaustion requirement. Accordingly, respondent concludes that petitioner's federal habeas claims are unexhausted and that the pending petition should be dismissed. (Resp't's Mot. to Dismiss at 3-4.)
II. Petitioner's Opposition
In opposition to respondent's motion to dismiss, petitioner argues that he presented each of his claims to the California Supreme Court, thereby satisfying the exhaustion requirement. In addition, petitioner argues that if his failure to present those claims to the California Court of Appeal is an issue, it should be noted that he did not personally choose which claims were presented on appeal. Rather, petitioner contends, his appointed counsel made those decisions and is responsible for any procedural default or errors stemming from that decision. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 2.)
I. Exhaustion of State Court ...