ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a motion to dismiss in which respondent asserts that petitioner has failed to exhaust state court remedies.
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 fair presentation requirement is met where the petitioner has described the operative facts and legal theory on which his claim is based. Picard, 404 U.S. at 277-78. Generally, it is "not enough that all the facts necessary to support the federal claim were before the state courts . . . or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982). Instead, [i]f state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.
Duncan v. Henry, 513 U.S. 364, 365 (1995). Accordingly, "a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 2081 (1996).
II. Background on Claims Presented to State Court
Petitioner raised only one claim*fn1 before the California Supreme Court: Petitioner's federal and state constitutional rights under the Eighth and Fourteenth Amendments . . . were violated when he was denied his statutory PC § 190 credits against his minimum term: breaching his plea agreement, which petitioner seeks specific performance based on his 2007 parole suitability denial.
Resp't's Mem. P. & A. in Supp. Mot. to Dismiss, Ex. A at 3. To the extent petitioner attempted to incorporate other claims into his California Supreme Court habeas petition by simply referring to other state habeas petitions, such claims were not "fairly presented" to the California Supreme Court and therefore the court cannot deem state court remedies as to any other claims exhausted. See id. ("supporting facts" section includes references to multiple appendices); see also Baldwin v. Reese, 541 U.S. 27, 32 (2004) ("ordinarily a state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document)"); Hill v. Giurbino, Case No. 06-CV-1769 LAB (RBB), 2007 WL 2781174, at *11 (S.D. Cal. 2007) (petitioner who did not present substance of claims to highest state court but merely referred court to his lower court habeas petitions did not exhaust state court remedies).
III. Analysis of Federal Claims
The claim raised by petitioner in his California Supreme Court petition is essentially the same as claim one made in this court. Pet. at 8.*fn2 Petitioner's second claim before this court reads as follows:
Petitioner is entitled to parole release because he has served over his fifteen year minimum term and over his maximum BPH regulatory matrix of twenty years for second degree murder, and the 2007 BPH parole denial failed to make a link (nexus) between that denial and petitioner's current threat risk to public safety if paroled.
Id. To the extent claim two raises claims different than those raised in claim one, the claims are not exhausted.
Respondent argues that despite the fact that petitioner presented claim one to the California Supreme Court, he has not exhausted state court remedies with respect to that claim. Resp't's Mem. P. & A. in Supp. Mot. to Dismiss at 2-3. In denying petitioner's habeas petition, the California Supreme Court cited People v. Duvall, 9 Cal. 4th 464, 474 (1995). Pet., Ex. A. Duvall stands for the proposition that habeas petitioners in California must "state fully and with particularity the facts on which relief is sought," and "include copies of reasonably available documentary evidence supporting the claim." Duvall, 9 Cal. 4th at 474.
Generally speaking, a denial by the California Supreme Court with a citation to Duvall is without prejudice because the deficiency can be cured in a subsequent state petition. See Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986). If a denial by the California Supreme Court is without prejudice, then state court remedies have not been exhausted with respect to subsequent claims made in federal court presented because state court remedies are still ...