The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge
ORDER VACATING REPORT AND RECOMMENDATION, DISMISSING FIRST AMENDED PETITION WITH LEAVE TO AMEND, AND APPOINTING COUNSEL FOR PETITIONER
On March 15, 2010, the Court issued a Report and Recommendation recommending the dismissal without prejudice of this action for, inter alia, failure to state a proper habeas claim, failure to exhaust available state remedies, and failure to name the proper respondent. Petitioner was ordered to file any objection by March 29, 2010. The Report and Recommendation apparently crossed in the mail with petitioner's second Petition for Writ of Habeas Corpus, which was filed herein on March 19, 2010, and which the Court construes as petitioner's First Amended Petition ("FAP").
Based on the belated filing of the FAP, the Report and Recommendation is hereby VACATED. However, the Court's review of the FAP reveals that it suffers from the same deficiencies as its predecessor. Specifically, the Court notes the following deficiencies in the FAP:
1. Under 28 U.S.C. § 2254(a), petitioner may only seek habeas relief if he is contending that he is in custody in violation of the Constitution or laws or treaties of the United States. See also Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed. 2d 385 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."); Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed. 2d 78 (1982) ("A federally issued writ of habeas corpus, of course, reaches only convictions obtained in violation of some provision of the United States Constitution."). Here, due to the vague and relatively incomprehensible nature of petitioner's claims, it is impossible for the Court to ascertain whether any of the grounds for relief alleged in the FAP raises a federal constitutional claim. Petitioner has failed to specify the grounds upon which he seeks relief, and has failed to adequately specify the facts supporting each ground, as required by Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Court ("Habeas Rules"). As such, petitioner has failed to demonstrate that the claims contained in the FAP implicate a federal constitutional claim.
2. As the Court previously advised petitioner, under 28 U.S.C. § 2254(b), habeas relief may not be granted unless petitioner has exhausted the remedies available in the courts of the State.*fn1 Exhaustion requires that the prisoner's contentions be fairly presented to the State courts, and be disposed of on the merits by the highest court of the State. See James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979). Moreover, a claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed. 2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed. 2d 438 (1971). As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L.Ed. 2d 179 (1982). Petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). Here, again, it is unclear whether petitioner has exhausted the claims set forth in the FAP in the California Supreme Court, and, therefore, petitioner has not met his burden with respect to any of his claims. Specifically, while petitioner alleges that he sought review in the California Supreme Court (see FAP at 5), he does not set forth any "claims" raised therein, and certainly does not indicate that he has exhausted the "claims" which he raises in the FAP. Moreover, a review of the California Appellate Court website indicates that petitioner has not filed a habeas petition or Petition for Review with the California Supreme Court; instead, the only filing by petitioner is a habeas petition to the Second District Court of Appeal, which was filed August 6, 2009, and which was denied on August 14, 2009.
3. Finally, petitioner has again failed to list the proper respondent in the FAP. Pursuant to Rule 2(a) of the Habeas Rules, petitioner must list the state officer who currently has custody of him, which is ordinarily the warden of his current penal institution. Here, petitioner has not listed a respondent. Petitioner must, instead, list the warden of the institution where he is currently incarcerated.
For the foregoing reasons, the FAP is dismissed with leave to amend. If petitioner desires to pursue this action, his counsel (see below) is ORDERED to file a Second Amended Petition on the current version of the approved Central District habeas form within forty-five (45) days of the date of this Order.
Order Appointing Counsel for Petitioner
The Court is empowered by Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts and 18 U.S.C. § 3006A(a)(2)(B) to appoint counsel at any stage of a habeas proceeding if it determines that "the interests of justice so require." Here, after duly considering petitioner's demonstrated inability to articulate clearly his claims and to rectify the deficiencies of which he previously was apprised, and the possibility that petitioner may lack the ability or capacity to properly proceed in this process, the Court has concluded that the interests of justice in this case would be served by the appointment of counsel for petitioner. Accordingly, the Office of the Federal Public Defender is hereby appointed as counsel for petitioner. (The clerk is directed to serve a copy of this Order on the Office of the Federal Public Defender, Attn: Mark Drozdowski, along with a copy of the FAP.)
Within the time parameter set forth above (subject to any reasonable extensions sought and granted), petitioner's counsel is ORDERED to confer with petitioner and then file either a Second Amended Petition rectifying the deficiencies of the FAP, or a notice of voluntary dismissal if counsel concludes that this action cannot properly be maintained.
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