FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding through counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the July 28, 2004 decision by the Board of Parole Hearings (hereinafter "Board") to deny him parole. Respondent has filed a motion to dismiss, arguing that petitioner has 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. Respondent has filed a reply. The parties appeared before the undersigned for oral arguments on January 28, 2011, and again on February 4, 2011.
On July 28, 2004, the Board conducted a parole hearing and found petitioner unsuitable for release on parole. Petitioner filed several petitions seeking habeas relief in state court, challenging the Board's decision. In this regard, applying the mailbox rule*fn1 , on October 21, 2005, petitioner filed a petition for writ of habeas corpus in the Amador County Superior Court. That court transferred the case to the Alameda County Superior Court which denied the petition on the ground that it failed to state a prima facie case for relief. On or about January 2, 2006, petitioner filed an amended petition in the Alameda County Superior Court. On January 6, 2006, that court denied the petition, again on the ground that it failed to state a prima facie case for relief. On January 16, 2006, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District. On February 9, 2006, the Court of Appeal denied the petition, explaining that petitioner was required to provide the court with a copy of the transcript of the parole hearing at which the challenged decision was issued. Petitioner subsequently submitted a transcript of the parole hearing to that court. On July 31, 2006, the California Court of Appeal summarily denied the petition. Finally, on July 16, 2006, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On February 7, 2007, the California Supreme Court summarily denied that petition. (Resp't's Exs. 1-4, Pet'r's Exs. A-C & Pet. Attach.)
On July 7, 2007, petitioner commenced this action by filing a federal petition for writ of habeas corpus with this court. Petitioner asserts four claims for relief: (1) the Board violated his right to due process under the Fourteenth Amendment by failing to ensure that he underwent a new psychological evaluation prior to the hearing; (2) the Board violated his right to due process and his "civil liberty" interest in parole under the Fourteenth Amendment because the Board members were arbitrary, unfair, biased, and unskilled in weighing the evidence before them; (3) the Board violated his right to due process under the Fourteenth Amendment by failing to properly apply the "some evidence" standard to his case; and (4) the Board exceeded its authority and violated its own regulations and state law by denying him parole because the Board is normally required to set parole dates at initial parole hearings. (Pet. at 5-6.)
On April 2, 2008, respondent filed the pending motion to dismiss, arguing that petitioner's federal habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 and that petitioner failed to properly exhaust his federal habeas claims. On June 13, 2008, the undersigned issued findings and recommendations, recommending respondent's motion to dismiss be granted and petitioner's federal habeas petition be dismissed as time-barred. The court at that time declined to address respondent's argument that petitioner's claims were also unexhausted. On October 2, 2008, the assigned district judge adopted the findings and recommendations in full and entered judgment. Petitioner appealed, and the Ninth Circuit reversed and remanded the case for factual development with regard to petitioner's claim that he was entitled to equitable tolling of the statute of limitations.
On March 18, 2010, counsel for respondent requested judicial notice of the pending motion to dismiss and noted that the court had not yet ruled on that motion to the extent it was based upon the argument that petitioner had failed to exhaust his claims. Respondent requested the court rule on that unaddressed issue. On May 5, 2010, the undersigned granted respondent's request and set a further briefing schedule.
RESPONDENT'S MOTION TO DISMISS
Respondent has moved to dismiss the pending petition, arguing that petitioner failed to exhaust his habeas claims in state court as required. Specifically, respondent notes that petitioner has raised four claims in his federal petition: (1) the Board failed to order a new psychological evaluation report before the 2004 parole hearing; (2) the Board was biased; (3) the Board's decision was not supported by some evidence; and (4) the Board impermissibly altered its regulations. Respondent contends that, in his petition to the California Supreme Court, petitioner merely argued that the California Court of Appeal had not responded to his petition.
(Resp't's Mot. to Dismiss at 4-5.) Respondent also argues that even if this court determines that petitioner's petition to the California Supreme Court incorporates by reference his claims presented to the California Court of Appeal, petitioner did not present all of his federal claims to the state appellate court either. In this regard, respondent argues that, in his petition filed before the California Court of Appeal, petitioner claimed only that the Board failed to order a new psychological report and did not argue that the Board was biased or that it's decision was not supported by some evidence. (Resp't's Mot. to Dismiss at 5.)
II. Petitioner's Opposition
In opposition to respondent's motion to dismiss, counsel for petitioner argues that petitioner has properly exhausted all of his claims in state court. Specifically, counsel contends that petitioner raised the four claims in his federal petition in his petitions filed in the California Court of Appeal and the California Supreme Court. In this regard, counsel argues that in "Ground 1" of his pro se petition to the California Supreme Court, petitioner wrote "see attached," thereby incorporating by reference the claims in his petition to the California Court of Appeal. The California Supreme Court subsequently denied his petition on the merits. In counsel's view, if the California Supreme Court felt petitioner had only filed a petition for writ of mandate to order the ...