FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 1, 2010, the undersigned ordered respondent to file a response to petitioner's December 31, 2009 amended habeas petition. On June 14, 2010, respondent filed a motion to dismiss the petition, arguing that petitioner had failed to exhaust all of his federal constitutional claims by first presenting them to the California Supreme Court. Petitioner filed an opposition to the motion on July 28, 2010. Respondent elected not to file a reply.
On January 10, 2007, a Shasta County Superior Court jury convicted petitioner in case No. 04F6567 of transporting methamphetamine (Health & Saf.Code, § 11379, subd. (a)), FN1 possessing methamphetamine for sale (§ 11378), possessing drug paraphernalia (§ 11364, a misdemeanor), and possessing less than 28.5 grams of marijuana, amisdemeanor (§ 11357, subd. (b)). It found defendant not guilty of being under the influence of a controlled substance (§ 11550, subd.
(a)), and the court declared a mistrial when the jury could not reach a verdict on the charge of driving under the influence of drugs (Veh.Code, § 23152, subd. (a)). The court found true the special allegations regarding prior drug-related convictions (§ 11370.2, subd. (c)) and a prior prison term ( Pinched, § 667.5, subd. (b)).
FN1. Hereafter, undesignated statutory references are to the Health and Safety Code.
In case No. 06F11120, defendant pled guilty to one count of failure to appear in case No. 04F6567 (Pinched, § 1320.5) and admitted the "on-bail" enhancement (Pinched, § 12022.1). The parties agreed to dismiss other felony and misdemeanor charges pending against defendant including case No. 04F7290. The court sentenced defendant to an aggregate term of 15 years and eight months in case Nos. 04F6567 and 06F11120. (Notice of Lodging Doc. on Jan. 28, 2011, Appellant's Petition for Review to the California Supreme Court, Ex. A. (hereinafter "Ct. of Appeal Opinion") at 1-2. See also Amended Petition (hereinafter "Pet.") at 1-2.) On August 19, 2008, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. (Ct. of Appeal Opinion at 1-2.) On September 17, 2008, petitioner sought review in the California Supreme Court on two grounds, claiming that: (1) the trial court's refusal to accept the parties' agreed-upon plea bargain violated petitioner's right to equal protection; and (2) that the trial court abused its discretion in denying petitioner his statutory right to plea bargain. (Notice of Lodging Doc. on Jan. 28, 2011, Appellant's Petition for Review to the California Supreme Court (hereinafter "S. Ct. Pet.") The California Supreme Court denied review on November 19, 2008. (Pet. at 3.)
On April 1, 2008, petitioner filed a petition for habeas corpus in the Shasta County Superior Court, which was summarily denied on April 7, 2009. (S. Ct. Pet., Appx. B.) Petitioner filed a petition for habeas corpus in the California Court of Appeal for the Third Appellate District, which was summarily denied on July 24, 2008. (Id., Appx. C.) On December 4, 2008, petitioner filed a second habeas petition in the Shasta County Superior Court, which was summarily denied on January 29, 2009. (Id., Appx. D.) On March 12, 2009, the California Court of Appeal summarily denied petitioner's second habeas petition filed in that court. (Id., Appx. E.)
On May 6, 2009, petitioner filed a petition for habeas corpus in the California Supreme Court. (S. Ct. Pet, Attached Docket Sheet at 1.) The California Supreme Court summarily denied that petition on October 22, 2009, citing In re Swain, 34 Cal. 2d 300, 304 (1949) (dismissal of state habeas petition for vague and conclusory allegations).
On September 10, 2009, while his habeas petition in the California Supreme Court was still pending, petitioner commenced this action by filing a federal petition for writ of habeas corpus setting forth five claims for relief and numerous sub-claims relating to petitioner's arrest and trial. Based on petitioner's filing of a "mixed" petition consisting of both exhausted and unexhausted claims and his "motion to stay and abe[y]" filed concurrently with his petition, the undersigned construed petitioner's motion as one brought pursuant to Rhines v. Weber, 544 U.S. 269, 277 (2005). However, because it did not satisfy the requirements of Rhines, the undersigned on October 27, 2009, denied the motion without prejudice to the filing of a renewed Rhines motion within thirty days. (Doc. No. 12.)
Instead of filing a new motion for stay and abeyance under Rhines, petitioner filed the operative Amended Petition on December 31, 2009.*fn1 He noted that on October 22, 2009, the California Supreme Court had denied his petition for writ of habeas corpus, and that he no longer had any petitions pending on appeal or in any other court as to the judgment of conviction under attack. Accordingly, on March 1, 2010, the court directed respondent to file a response to the Amended Petition. (Doc. No. 19.)
In his Amended Petition, petitioner asserts thirteen grounds for habeas relief. His first set of claims allege violations of his constitutional right to a fair trial, specifically as follows: the trial judge incorrectly denied a recusal motion (Claim 1); petitioner was denied due process when the trial judge would not allow him, personally, to seek suppression of evidence under the Fourth Amendment when his trial counsel declined to move for suppression (Claim 2); and the trial judge wrongly overruled a hearsay objection made by petitioner's trial counsel (Claim 3). (Pet. at 5-6.)
The next set of claims allege ineffective assistance of trial counsel. Specifically, petitioner claims that his trial counsel rendered ineffective assistance when he: advised petitioner to waive his right to a preliminary hearing, where trial counsel "did not even have complete police reports or discovery at the time of this advice" (Claim 4); failed to challenge the prosecution's bases for probable cause for arresting petitioner for driving under the influence (Claim 5); failed to challenge the warrantless search of petitioner's car and declined to move to suppress evidence that petitioner believed was obtained illegally (Claim 6); failed to secure petitioner's vehicular and medical reports to challenge the prosecution's basis for probable cause for arresting petitioner (Claim 7); failed to challenge the police officer's stated reason for petitioner's prolonged detention (Claim 8); and failed to file motions for judicial recusal and to suppress evidence, as petitioner requested (Claim 9). (Id. at 6-8.)
Petitioner's next set of claims concern the prosecutor's conduct.*fn2 In this regard, petitioner alleges that the prosecution erred by destroying petitioner's blood sample without properly testing it (Claim 10); and that the prosecutor committed misconduct by failing to produce in discovery a "missing report" of a controlled substance examination done on petitioner at the time of his arrest (Claim 11). (Id. at 8-9, 54-55.)
Petitioner's final set of claims allege ineffective assistance of his appellate counsel. In this regard, petitioner claims that his appellate counsel erred by failing to raise the issues reflected in Claims 1, 2, 3, and 10 on direct appeal (Claim 12); and failed to challenge petitioner's warrantless arrest, warrantless search, and ineffective assistance of trial counsel on direct appeal or in state habeas proceedings (Claim 13). (Id. at 9.)
RESPONDENT'S MOTION TO DISMISS
Respondent has moved to dismiss the pending habeas petition, arguing that petitioner failed to exhaust all of his claims or sub-claims for federal habeas relief presented under his thirteen listed grounds for relief. Specifically, respondent argues that "[i]t does not appear that Petitioner's state court presentation comprised the assertion of the same historical facts, and argument as to what legal consequences followed from those historical facts, as are reflected in his federal court presentation." (Motion to Dismiss (hereinafter "MTD") at 5-6.) According to respondent's broad brushed argument, petitioner's Claims ...