FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner challenges the 2008 decision of the California Board of Parole Hearings (hereinafter "Board")*fn1 finding him unsuitable for parole at his initial parole consideration hearing. Before the court is respondent's motion to dismiss the petition on the grounds that petitioner failed to properly exhaust his federal habeas claims by first fairly presenting them to the highest state court. Petitioner has filed an opposition to the motion.
PETITION FOR WRIT OF HABEAS CORPUS
Petitioner raises three claims for federal habeas relief in the petition pending before this court. First, he claims that the Board's 2008 decision denying him parole was not supported by "some evidence" of current dangerousness and was reached through the application of "the wrong analytical framework and criteria" and thus violated his right to due process. (Petition (Doc. No. 1) at 7.) Specifically, petitioner challenges the Board's findings that he posed an unreasonable threat to the public if released on parole and points to his most recent psychological evaluation, which petitioner contends "weighs heavily in favor of release." (Id. at 7-8.)
Second, petitioner claims that the Board "executes a policy that is unfair and biased which results in the arbitrary and capricious denial of parole" in violation of both the equal protection clause and petitioner's right not to be subjected to cruel and unusual punishment. (Id. at 9.) Relying on the decision in In re Lawrence, 44 Cal. 4th 1181 (2008), petitioner argues that "[p]arole is the norm, not the exception" and that he should not be required to "show 'insight'" - which has "no set standard or guideline to apply" - or to "change his version of the crime . . . to conform to the Board's version" in order to be found suitable for release on parole (Doc. No. 1 at 9.)
Third, petitioner claims that his liberty interest in parole was violated by the Board's "arbitrary and capricious decision" and that this violation of his constitutional rights provides a cognizable ground for habeas relief. (Id. at 11.)
Respondent contends that petitioner did not exhaust his claims by presenting them first to the California Supreme Court as evidenced by that court denying him habeas relief with a citation to People v. Duvall, 9 Cal. 4th 464, 474 (1995). (MTD at 3.) In this regard, respondent notes that in seeking habeas relief from the California Supreme Court, petitioner failed to submit a copy of the transcript of his 2008 parole and instead, included only copies of his psychosocial assessment, the face sheet for the Board's decision and lower state court decisions denying his previous habeas petitions. (Id. at 3-4. ) Respondent argues that a citation to Duvall "stands for the proposition that a petitioner must 'state fully and with particularity the facts on which relief is sought' and 'include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations.'" (Id. at 3) (quoting Millan v. Marshall, 677 F. Supp. 2d 1217, 1220 (C.D. Cal. 2009). Respondent argues that since petitioner did not submit a copy of the hearing transcript with his final state habeas petition, the California Supreme Court never adjudicated the merits of his claims. Accordingly, respondent contends, the claims in the habeas petition pending before this court are unexhausted and the petition should be dismissed.
II. Petitioner's Opposition
Petitioner asserts that he has exhausted his claims by fairly presenting them to the highest state court. He argues that he first presented his claims to the Alameda County Superior Court and when that court issued a "fundamentally unfair decision," he asked the California Court of Appeal to address the constitutional violations. (Opp'n at 2.) Petitioner contends that when the California Court of Appeal summarily denied his petition, he filed a habeas petition with the California Supreme Court in which he presented all of his current claims for relief. (Id.) Addressing respondent's specific arguments, petitioner asserts that he fulfilled the requirements of California law in his petition filed with the California Supreme Court, noting that he is not required to provide the court with every piece of evidence in support of his claims. (Id. at 3.) Petitioner also notes that the California Supreme Court's bare citation to Duvall without comment does not mean that he failed to exhaust his claims. (Id.) Petitioner argues that in his case the state courts failed to adhere to established rules and procedures governing habeas corpus actions. (Id. at 4.) Petitioner takes the position that the state courts should adjudicate habeas petitions instead of "merely passing the buck up to the federal court[.]" (Id.) Petitioner concludes by asserting that state court habeas remedies are "fundamentally inadequate" since he provided those courts with "all documents needed to issue an Order to Show Cause or Hold an Evidentiary Hearing, including the Board Decision Fact Sheet outlining Denial Criteria." (Id.)
I. Exhaustion Requirement
State courts must be given the first opportunity to consider and address a state prisoner's habeas corpus claims. See Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)); King v. Ryan, 564 F.3d 1133, 1138 (9th Cir. 2009) ("Habeas petitioners have long been required to adjudicate their claims in state court - that is, 'exhaust' them - before seeking relief in federal court."); Farmer v. Baldwin, 497 F.3d 1050, 1053 (9th Cir. 2007) ("This so-called 'exhaustion requirement' is intended to afford 'the state courts a meaningful opportunity to consider allegations of legal error' before a federal habeas court may review a prisoner's claims.") (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). In general, a federal court will not grant a state prisoner's application for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1). The exhaustion requirement will not be deemed to have been waived unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).
A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting the claims to the federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). A federal claim is fairly presented if the petitioner has described the operative facts and the federal legal theory upon which his claim is based. See Wooten, 540 F.3d at 1025 ("Fair presentation requires that a state's highest court has 'a fair opportunity to consider . . . and to correct [the] asserted constitutional defect.'"); Lounsbury v. Thompson, 374 F.3d 785, 787 (9th ...