The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge
REPORT AND RECOMMENDATION FOR ORDER DENYING MOTION TO DISMISS WITHOUT PREJUDICE AND PROVIDING NOTICE REGARDING POSSIBLE DISMISSAL OF PETITION FOR FAILURE TO EXHAUST STATE COURT REMEDIES
On March 10, 2010, Petitioner, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. §2254, along with a Motion to Proceed in forma pauperis. [Doc. No. 1.] On March 23, 2010, the Court granted Petitioner's Motion to Proceed in forma pauperis and advised Petitioner he failed to allege exhaustion of his state court remedies as to all claims presented. [Doc. No. 4.] On April 13, 2010, Petitioner filed a First Amended Petition ("the Petition") alleging exhaustion of his state court remedies with respect to all claims presented. [Doc. No. 8.] On June 18, 2010, Respondent filed a Motion to Dismiss Petition contending Petitioner failed to exhaust all four of his claims. [Doc. No. 11.]
The Court has reviewed the record and, for the following reasons, RECOMMENDS United States District Judge Roger T. Benitez adopt the finding that Petitioner has filed a "mixed" petition, that is, one that contains exhausted and unexhausted claims. The Court further RECOMMENDS Petitioner be notified that he should inform the Court as to how he chooses to proceed with his mixed petition. Finally, the Court RECOMMENDS the Motion to Dismiss be DENIED without prejudice.
A jury convicted Petitioner of murder [Cal. Penal Code §187 (a)], found true the robbery special circumstance allegation [Cal. Penal Code §190.2(a)(17)], and found true the personal-arming allegation [Cal. Penal Code §12022.5(a)]. The trial court sentenced Petitioner to life without the possibility of parole plus five years. [Lodgment 1, at 1-2, 830, 929.] The California Court of Appeal, Fourth Appellate District, Division One affirmed the judgment on August 27, 2009. [Lodgment 5, at 1.] The California Supreme Court denied Petitioner's petition for review on December 17, 2009. [Lodgment 7.]
Respondent's primary argument in support of the motion to dismiss is the Petition advances only unexhausted claims. Specifically, Respondent contends that in state court, Petitioner did not raise grounds one and two as federal claims and never raised grounds three and four. [Doc. No. 11, at 5.]
A state prisoner's federal habeas petition may not be granted if state remedies are unexhausted. See 28 U.S.C. § 2254(b)(1)(A). In most instances, a claim is exhausted once it is presented to a state's highest court. (See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002)). Federal courts cannot consider petitions that contain both exhausted and unexhausted claims, often referred to as "mixed petitions." (See Rose v. Lundy, 455 U.S. 509, 522). The filing of a mixed petition renders it subject to dismissal. Id. A petitioner has satisfied the exhaustion requirement if he has "fairly presented" his federal claim to the highest state court with jurisdiction to consider it...." (Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996)).
A claim is fairly presented to the highest state court if it is presented in the federal habeas petition in a manner that is the "substantial equivalent" of how it was presented in the state courts. (Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982)); (Schiers v. California, 333 F.2d 173, 174 (9th Cir. 1964)). There are at most three possible ways for a petitioner to exhaust a claim in state court. The petitioner must: (1) reference specific provisions of the federal constitution or statutes (See Lyons v. Crawford, 232 F.3d 666, 668, 670 (9th Cir. 2000) as modified by 247 F.3d 904 (9th Cir. 2001)); (2) cite to federal case law (Id.); or (3) cite to pertinent state case law explicitly applying federal law. (Peterson v. Lampert, 319 F.3d 1153 (9th Cir. 2003)).
Respondent contends the federal claim that was presented to the state courts rested on a different factual theory than the claim presented here. [Doc. No. 11, at 5.] At the state appellate level, Petitioner claimed the preaccusation delay denied him due process of law and a fair trial in violation of the state and federal constitutions, "because the delay caused significant prejudice that was not outbalanced by any justification for the delay." [Lodgment 2, at 24.] Petitioner further contended, "the delay in charging appellant was done in reckless disregard of the circumstances known to prosecution that a key witness for the defense...was homeless and that delay in charging the case raised a heightened risk that he might become difficult to locate and unavailable to testify." [Lodgment 2, at 44.]Petitioner referred explicitly to the federal Constitution and cited two state cases*fn1 which analyzed the federal issue of preaccusation delay to support this contention. Id.
Petitioner again raised the unjustifiable and prejudicial preaccusation delay in the California Supreme Court, alleging the delay was reckless and "denied appellant his right to due process of law in violation of the Fifth and Fourteenth Amendments." [Lodgment 6, at 18.] Petitioner contended the witness became unavailable and the prosecution offered no justification for the delay. [See Lodgment 6, at 8,10.] Petitioner
People v. Nelson, 43 Cal. 4th 1242 (2008) and People v. Boysen, 165 Cal.App.4th 761 (2007) in his petition to the California Supreme Court, both of which analyzed two federal cases*fn2 addressing the issue of preaccusation delay under the federal Constitution and federal court decisions. The Nelson court concluded
[t]hus, Lovasco, supra, 431 U.S. 783, 97 S.Ct. 2044, and Marion, supra, 404 U.S. 307, 92 S.Ct. 455, indicated that delay undertaken to gain a tactical advantage over the accused, or delay incurred in reckless disregard of circumstances known to the prosecution suggesting that delay might prejudice ...