The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner, an inmate in Sacramento County proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's September 3, 2009, motion to dismiss to which petitioner filed an opposition after which respondent filed a reply.
Petitioner was convicted in 1999 of sexual battery of a victim who was not a minor under Cal. Penal Code § 243.4, and in 2003, he was convicted of being an ex-felon in possession of a firearm. Petition, p. 5. As a result of the passage of "Megan's Law," which applied retroactively, petitioner alleges he has had his parole revoked for a total of twenty (20) months for "curfew" violations. Id.
In the instant petition, petitioner challenges a February 11,*fn1 2009, revocation of his parole for which he received a sentence of nine months. Petition, p. 1. Petitioner raises the following grounds: 1) special conditions of parole constitute cruel and unusual punishment; 2) petitioner was denied due process during revocation proceedings. Id., at 5, 7.
Respondent moves for dismissal of the petition on the grounds that both claims are unexhausted and that claim 1, alleging that the special conditions of parole constitute cruel and unusual punishment, is, in addition, procedurally defaulted. Motion to Dismiss (MTD), pp. 1-5.
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).*fn2 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 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).
Respondent argues correctly that to exhaust his state court remedies, petitioner must provide the highest court in the state with "a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." MTD, p. 2, quoting Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277 (1982) citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509 (1971); also citing, Kelly v. Small, 315 F.3d 1063, 1069 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007).
It is not enough that all the facts necessary to support the federal claim were before the state courts, id., at 277, 92 S.Ct., at 513, or that a somewhat similar state-law claim was made. See, e.g., Gayle v. LeFevre, 613 F.2d 21 (CA2 1980); Paullet v. Howard, 634 F.2d 117, 119-120 (CA3 1980); Wilks v. Israel, 627 F.2d 32, 37-38 (CA7), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1980); Connor v. Auger, 595 F.2d 407, 413 (CA8), cert. denied, 444 U.S. 851, 100 S.Ct. 104, 62 L.Ed.2d 67 (1979). In addition, the habeas petitioner must have "fairly presented" to the state courts the "substance" of his federal habeas corpus claim. Picard, supra, 404 U.S. at 275, 277-278, 92 S.Ct. at 512, 513-514. See also, Rose v. Lundy, 455 U.S. 509, --, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982).
Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277
Respondent is also correct that petitioner has the burden of proving exhaustion of state court remedies and that in California a petitioner must present his claims to the California Supreme Court. Id., citing Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981); Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986).
Respondent also contends, and the state supreme court petition presented as Exhibit 1 to the motion confirms, that petitioner did not assert the claims he raised in the instant petition before the state supreme court. MTD, pp. 2-3, Court Document 11-2, Exh. 1, pp. 1-48. Within that petition the sole ground for relief raised was that "petitioner is being prejudiced by lower courts['] 'post-card' denials for relief that is [sic] not applicable." MTD, Court Doc. 11-2, p. 4. Petitioner included as supporting facts that he appeared before the BPH on March 22, 2008, for violation of special conditions of parole, "good cause" was found and his parole was revoked for nine months. Id. Petitioner goes on to state within his state supreme court habeas petition that there is no administrative appeal process for parole revocation decisions such as his and contends that at both the superior court and state appellate court level, his petitions were wrongly denied on the basis of a failure to exhaust administrative remedies (with a second state court petition denied as successive*fn3 ). Id., at 4-6. Petitioner asserts within that petition that he is attaching exhibits showing his having sought "administrative relief which has nothing to do with the revocation proceedings." Id., at 6. Petitioner continues in his state supreme court petition stating that "[i]f this Court reviews the Court of Appeals decision, it will note that the Court of Appeals did not rule on its merit. Made no reference to the issues or ...