The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner is a state prisoner proceeding on petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the amended petition filed July 8, 2010. Pending before this court is respondent's October 4, 2010 motion to dismiss the petition on the ground that it contains only unexhausted claims. Both parties have consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c). After carefully reviewing the record and the applicable law, the undersigned will order that the motion be granted and the amended petition dismissed for failure to exhaust state remedies.
A jury found petitioner guilty of assault with a firearm and found true the personal use of a firearm enhancement. (Cal. Penal Code §§ 245(a)(2), 12055.5(A)). In May 2008, the trial court sentenced petitioner to five years in prison. (Lod. Docs. 1, 2.)
On November 14, 2008, petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (Lod. Doc. 5.) In it, he alleged the following claims: (1) the state failed to disclose favorable evidence consisting of a 911 dispatch call, which when disclosed "wasn't all there"; and (2) trial counsel rendered ineffective assistance by failing to conduct a reasonable pretrial investigation or call witnesses on petitioner's behalf. (Id. at 3, 4.) The California Supreme Court summarily denied the petition on May 13, 2009, citing In re Swain, 34 Cal. 2d 300, 304 (1949). (Lod. Doc. 6.)
On July 24, 2009, the California Court of Appeal, Third Appellate District, affirmed the judgment. (Lod. Doc. 2.) On August 18, 2009, petitioner filed a petition for review of the court of appeal's decision in the California Supreme Court. (Lod. Doc. 3.) Petitioner made the following claims: (1) the court of appeal should have reversed his assault conviction because the jury was allowed to base its guilty verdict on an unlawful theory of culpability; and (2) the trial court's error pursuant to Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229 (1965) went beyond "brief and mild references" to petitioner's refusal to testify and was prejudicial. (Id. at 4, 15.) The California Supreme Court denied review on September 30, 2009. (Lod. Doc. 4.)
On June 11, 2010, petitioner commenced this action. (Doc. #1.) On July 8, 2010, petitioner filed the operative amended petition. (Doc. #6, hereinafter "Ptn.") The petition alleges due process and ineffective assistance claims pertaining to petitioner's 2008 trial and conviction. Respondent filed a motion to dismiss on October 4, 2010. (Doc. #15, hereinafter "MTD.") Petitioner filed an opposition to the motion on October 14, 2010. (Doc. #18, hereinafter "Opp.").
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).*fn1 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); Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986).
Petitioner asserts the following claims in the amended petition: (1) conviction obtained by the unconstitutional failure to disclose favorable evidence by concealing evidence of a 911 call and altering a 911 call; (2) denial of effective assistance of counsel because (a) the court denied petitioner's motion to substitute counsel pursuant to People v. Marsden, 2 Cal. 3d 118 (1970) even though the prosecutor and trial counsel are brother and sister, and (b) trial counsel failed to call witnesses at trial; (3) conspiracy by the prosecutor, trial counsel and police officers to deprive petitioner ...