The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISCHARGING THE ORDER TO SHOW CAUSE THAT ISSUED ON SEPTEMBER 16, 2010 (Doc. 12)
ORDER DIRECTING PETITIONER TO WITHDRAW HIS UNEXHAUSTED CLAIM WITHIN THIRTY (30) DAYS OF SERVICE OR SUFFER DISMISSAL OF THE ACTION DEADLINE: THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on October 13, 2009 (doc. 3.) Pending before the Court is the petition, which was filed on October 5, 2010, and amended to reflect the proper Respondent on September 16, 2010.
I. Discharge of the Order to Show Cause
On September 16, 2010, the Court issued an order to Petitioner to show cause why the petition should not be dismissed for Petitioner's failure to exhaust state remedies with respect to his claims. The order was served by mail on Petitioner on the same date.
On October 1, 2010, Petitioner filed a response to the order to show cause. Accordingly, the order to show cause will be discharged.
II. Petitioner's Failure to Exhaust State Remedies with Respect to Some Claims
Petitioner alleges the following claims in the petition:
1) a great bodily injury enhancement could not lawfully be refiled after it was twice dismissed (Pet. 4)*fn1 ; 2) there was insufficient evidence to sustain the great bodily injury enhancement (Pet. 4); 3) trial counsel rendered ineffective assistance by failing to raise an issue concerning two dismissals, failing to object to the out-of-court testimony of witness Attaway at a preliminary hearing, and depriving Petitioner of meaningful cross-examination (Pet. 5); and 4) Petitioner was deprived of his rights to confront the witnesses against him, due process of law, right to a fair trial, and the right to present a defense by the admission of Attaway's preliminary hearing testimony, a 9-1-1 tape, and a statement made to police (Pet. 5). Reference to the petition for review filed in the California Supreme Court, which Petitioner filed in response to the order to show cause, reflects that claims 1, 2, and 4 were raised in the California Supreme Court and thus were exhausted. Claim 3, however, which concerns the alleged ineffective assistance of counsel, was not raised in the California Supreme Court. (Doc. 13, 6-7, 15-25.) Thus, Petitioner failed to exhaust his state court remedies as to his third claim concerning the alleged ineffective assistance of counsel.
A petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the federal court, and demonstrating that no state remedy remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis).
Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court reiterated the rule as follows:
In Picard v. Connor, 404 U.S. 270, 275...(1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct' alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If 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, 513 U.S. at 365-366. The Ninth Circuit examined the rule further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended by Lyons v. Crawford, ...