The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the amended petition filed on February 11, 2010. Pending before this court is respondent's May 27, 2010 motion to dismiss the petition on the ground that it contains only unexhausted claims. After carefully reviewing the record and the applicable law, the undersigned concludes that the motion should be denied.
In 2007, following a jury trial in the Sacramento County Superior Court, petitioner was convicted of six counts of lewd and lascivious acts on a child under fourteen (Cal. Penal Code § 288(a)) and two counts of attempting to commit the same offense. On May 11, 2007, the trial court sentenced him to eighteen years in state prison. (Amended Petition (hereinafter, "Ptn.") at 4.)
On direct appeal, petitioner claimed that he "was denied due process of law when the trial court (1) permitted the prosecutor to play only a small portion of a pretext call, (2) let a 'biased interpreter' explain parts of the call; and (3) allowed the prosecutor to argue the 'emotion' of the call." (Lod. Doc. 1 (hereinafter "Opinion") at 1.) On July 27, 2009, the California Court of Appeal, Third Appellate District affirmed the judgment, holding that petitioner had forfeited his due process and fair trial claims by failing to raise such objections at trial. (Id. at 5.)
On August 31, 2009, petitioner filed a petition for review in the California Supreme Court. (Lod. Doc. 2.) The California Supreme Court summarily denied the petition on October 14, 2009. (Lod. Doc. 3.)
On December 28, 2009, petitioner filed a petition for writ of habeas corpus with this court. (Doc. #1.) On January 20, 2010, the undersigned dismissed the petition with leave to amend, noting that petitioner had alleged "at least one unexhausted claim" and "fail[ed] to include any state court records upon which this court may make an independent assessment" of the exhaustion issue. (Doc. #4 at 2.) The court ordered petitioner to file a short brief along with the amended petition "demonstrating exhaustion, or explaining his choice to dismiss the unexhausted claims and proceed on the exhausted claims only, or to seek a stay to exhaust the unexhausted claims." (Id. at 4.)
On February 11, 2010, petitioner filed his amended petition and short brief. (Doc. #5). The amended petition alleged due process violations in connection with the playing of a portion of a pretext call at petitioner's trial; it also alleged ineffective assistance of trial counsel. (Ptn. at 8-10.) In his accompanying brief, petitioner asserted that both claims were exhausted. (Brief at 2.)
Respondent filed a motion to dismiss on May 27, 2010. Petitioner filed an opposition to the motion on October 1, 2010. Respondent filed a reply in support of the motion on October 12, 2010.
I. 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).*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. 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 in California a petitioner must present his claims to the California Supreme Court. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981); ...