The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner, a state prisoner housed in Arizona and proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. This case is before the undersigned pursuant to the parties' consent. Doc. ## 3, 8.
Petitioner punched his victim in the face, causing the victim to fall to the ground and sustain a brain injury that sent him into a coma and ultimately killed him. Lodged Doc. 4 at pp. 3-4. In 2006, petitioner was convicted of both involuntary manslaughter based on a battery (Cal. Penal Code § 192(b)) and assault by means likely to produce great bodily injury (Cal. Penal Code § 245(a)(1)). The assault count carried a sentence enhancement for great bodily injury resulting in coma (Cal. Penal Code § 12022.7(b)). Petitioner was also convicted of dissuading a witness from arresting another for a crime (Cal. Penal Code § 136.1(b)(3)), a count not at issue here. Petition (hereinafter, Ptn.) at p. 2.
Petitioner has set forth the following claims: (1) that aggravated assault is a lesser included offense within the greater offense of involuntary manslaughter, so as to bar conviction of both offenses when they arise out of the same conduct; (2) an enhanced sentence for great bodily injury on the assault count is illegal when the victim dies of his injuries, because in those circumstances, assault is preempted by the more specific offense of involuntary manslaughter. Ptn. at pp. 3-4.
Petitioner briefed both claims to the California Court of Appeal, which affirmed the judgment on both grounds. In his subsequent petition for review to the California Supreme Court, petitioner briefed only claim (2), though he mentioned claim (1) in passing. His petition to the California Supreme Court cites only California cases and does not raise a federal claim. Similarly, the Court of Appeal's analysis of petitioner's claims was based solely on state law.
Respondent urges this court to deny habeas relief on claim (1) because the claim is not exhausted and, to the extent it concerns a question of state law, is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475 (1991) ("Federal habeas relief does not lie for errors of state law.") Respondent further argues that, even if claim (1) can be construed as presenting a federal question, it does not state a violation of federal double jeopardy under the applicable Supreme Court test. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932).
Respondent acknowledges that claim (2) is exhausted by virtue of the California Supreme Court's denial of the petition. However, respondent argues, because it only concerns state law and does not present a federal question, claim (2) should also be denied.
Respondent is correct that petitioner has raised two state law claims, one exhausted and one unexhausted. Moreover, having reviewed the petition to the California Supreme Court, the undersigned notes that petitioner based his claims solely on state law, and that none of his cited cases discussed the federal law of double jeopardy. See Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc) ("[F]or purposes of exhaustion, a citation to a state case analyzing a federal constitutional issue serves the same purpose as a citation to a federal case analyzing such an issue."). Thus, this court concludes that petitioner has not exhausted any potential federal claim under the Fifth Amendment doctrine of double jeopardy.
Here, the unexhausted claim can be construed as giving rise to a federal double jeopardy question, as it alleges that petitioner was improperly convicted of two offenses based on the same act where the statutory elements of one offense (aggravated assault) were a subset of the statutory elements of the other offense (involuntary manslaughter predicated on battery). See Lodged Doc. 4 at p. 4 (lesser included offense doctrine prohibits two convictions if one offense necessarily includes all elements of the other). This is the same test applied under the federal doctrine of double jeopardy. See Blockburger, supra, 284 U.S. 299. However, in arguing this claim based solely on state law, petitioner clearly failed to exhaust its federal component.
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, 30 L.Ed.2d 438 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied , 478 U.S. 1021, 106 S.Ct. 3336 (1986). A state court has had an opportunity to rule on the merits of a claim when the petitioner has fairly presented that claim to that court. 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 ...