The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently pending before the court is respondent's motion to dismiss certain claims for failure to exhaust and not stating proper federal claims (Doc. 11).
Petitioner also filed a motion seeking a stay pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005). The undersigned issued findings and recommendations on July 30, 2010 (Doc. 16) that the Rhines stay be denied, however petitioner was provided 14 days to inform the court if he wished to proceed with a King/Kelly*fn1 stay to exhaust his First Amendment claim. However, the fourteen days has since passed and petitioner has not responded or otherwise communicated with the court. Therefore, the court will not consider a stay of this case for petitioner to exhaust his First Amendment claim.*fn2
Petitioner challenges the 2008 decision of the Board of Parole Hearings (BPH) that denied him parole. There appears to be a discrepancy in the exact claims that petitioner is bringing in the instant federal petition. The petition certainly brings at least two claims: 1) the BPH's failure to find him suitable for parole violated his due process rights because it was not supported by 'some evidence;' and 2) the BPH's decision to defer his next parole consideration for four years violated his due process rights under the Fourteenth Amendment.
If liberally construed, the petition may also seek relief based on two more claims: the BPH's decision violated its own regulations (Petition at 3); and the BPH found him unsuitable for parole because he did not attend an Alcoholic Anonymous/Narcotic Anonymous, a religious based program, in violation of his First Amendment rights (Petition at 5).
Exhaustion - Legal Standard
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).*fn3 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. 1985).
It is not enough that all the facts necessary to support the federal claim were before the state courts, Picard, at 277, 92 S.Ct., at 513, or that a somewhat similar state-law claim was made. See Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887 (1995). 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 (1982).
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. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981); Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986).
Respondent argues that no First Amendment claim was exhausted in state court. Petitioner clarifies in his opposition that he was not attempting to state a new claim, rather it was additional background information regarding another claim. Though, petitioner states to the extent it could be construed as a new claim it was exhausted. However, petitioner has failed to meet his burden in demonstrating that this claim was exhausted and a review of petitioner's habeas petition before the California Supreme Court does not reveal any First ...