The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DIRECTING PETITIONER TO SHOW CAUSE IN WRITING NO LATER THAN TWENTY-ONE (21) DAYS AFTER SERVICE OF THIS ORDER WHY THE ACTION SHOULD NOT BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE COURT REMEDIES (DOCS. 1, 11)
DEADLINE: TWENTY-ONE (21) DAYS
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is the petition, which was filed on February 16, 2010.
Petitioner is an inmate of the California State Prison at Corcoran serving a sentence of five years and four months for eight counts of indecent exposure in violation of Cal. Pen. Code § 314.1. The offenses, consisting of repeated acts of masturbation, were committed while Petitioner was an inmate of a state prison. (Pet. 1-7.) Petitioner's central contention is that the evidence of the conduct constituting the offenses was insufficient because the location of the conduct was a state prison, and thus the offense was not committed in a public place as Petitioner maintains the statute defining the crime required.
Petitioner raises claims concerning the following grounds in the petition: 1) unspecified ineffective assistance of his appellate counsel for failing to advocate Petitioner's theory of the case; 2) malicious prosecution based on Petitioner's position that a prison is not a public place within the meaning of the statute defining the crime; 3) prosecutorial misconduct based on misrepresentation of the law of indecent exposure with respect to commission of the offense in a public place, reference in argument to Petitioner's having admitted committing the act or conduct portion of the offense, and reference to Petitioner's prior convictions; and 4) judicial misconduct based on the trial court's failure to require the correct law to be applied at the preliminary hearing and failure to let Petitioner file a motion. (Pet. 4-7.)
By order filed on November 24, 2010, the Court reviewed the petition and the law concerning exhaustion of state court remedies. The Court concluded that because the petition appeared to be a mixed petition, Petitioner could withdraw the unexhausted claims and proceed with the exhausted ones, or face dismissal of the petition without prejudice. The Court gave Petitioner thirty days to file a motion to withdraw the unexhausted claims. The Court informed Petitioner as follows:
In the event Petitioner does not file such a motion, the Court will assume Petitioner desires to return to state court to exhaust the unexhausted claims and will therefore dismiss the Petition without prejudice. (Doc. 11, 6:13-16.) The order was served on Petitioner by mail on November 24, 2010.
On January 3, 2011, Petitioner filed a purported notice of appeal from the Court's order of November 24, 2010. On April 19, 2011, the Court of Appeals for the Ninth Circuit dismissed the appeal for lack of jurisdiction because it was taken from an order that was neither appealable nor final, and the appeal was terminated. (Doc. 15.)
II. Exhaustion of State Court Remedies
A petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the federal court, and demonstrating that no state remedy remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the factual and legal basis for the claim. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis).
Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court reiterated the rule as follows:
In Picard v. Connor, 404 U.S. 270, 275...(1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct' alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling ...