The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel, with a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner challenges his 2008 conviction for assault and battery, and
his resulting eight-year prison sentence, which was based in part on a
finding that petitioner had committed a prior serious felony.
Respondent moves to dismiss the petition for writ of habeas corpus for
failure to exhaust state court remedies. (Dkt. No. 15.) Petitioner has
filed two "motions for summary judgment" which respond to the merits
of respondent's motion to dismiss (Dkt. Nos. 19, 20), and which the
court therefore construes as petitioner's opposition thereto.
Petitioner also seeks discovery and the issuance of subpoenas duces
tecum (Dkt. No. 17), and moves for a preliminary injunction (Dkt. No.
22). For the reasons that follow, this court recommends that
respondent's motion be granted, and petitioner's
motions be denied.
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; a waiver of exhaustion may be neither implied nor inferred. 28 U.S.C. § 2254(b)(3).*fn1 "[T]he interests of comity and federalism dictate that state courts must have the first opportunity to decide a petitioner's claims." Rhines v. Weber, 544 U.S. 269, 273 (2005), citing Rose v. Lundy, 455 U.S. 509, 518-519 (1982).
A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider and rule on 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.), cert. denied, 478 U.S. 1021 (1986). A state court has had an opportunity to rule on the merits of a claim when the petitioner has fairly presented that claim to the state court. The fair presentation requirement is met where the petitioner has described the operative facts and legal theory on which his claim is based. Picard, 404 U.S. at 277-78. Generally, it is "not enough that all the facts necessary to support the federal claim were before the state courts . . . or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982). Rather, [i]f 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 at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.
Duncan v. Henry, 513 U.S. 364, 365 (1995). Thus, "a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 116 S. Ct. 2074, 2081 (1996). A federal district court may not entertain a petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each of the claims raised. Rose v. Lundy, supra, 455 U.S. at 520. A mixed petition containing both exhausted and unexhausted claims must be dismissed. Id. at 510, 522.
Respondent contends that neither of the claims asserted by petitioner herein were presented in any form to the California Supreme Court, and are therefore not exhausted, thus requiring dismissal of the instant petition.
Petitioner claims: (1) that he is in the process, with the court's assistance, of obtaining "[n]ewly discovered evidence material to the state's case against me and which I could not, with reasonable diligence, have produced at trial," specifically, the report of a 2001 prison incident in which petitioner was the victim of a stabbing at Corcoran State Prison, which would allegedly support petitioner's "reduced culpability" defense; and (2) that petitioner was denied a fair trial by the trial court's exclusion of the expert testimony of forensic psychologist Linda Barnard, who sought to testify in support of petitioner's defense theory of "PTSD [Post-Traumatic Stress Disorder]-induced unconsciousness."*fn2 (Dkt. No. 1 at 8, 12, 20-21.)*fn3
It is evident that neither of these claims were presented to the state courts. Rather, in the direct appeal of his conviction and sentence, petitioner made the following two unrelated arguments to the California Court of Appeal, Third Appellate District: (1) that the trial court violated petitioner's due process rights by failing to dismiss the finding that petitioner had committed a prior serious felony conviction; and (2) that the trial court erred in the calculation of petitioner's prejudgment custody credits. (Lodged Document ("Ldgd. Doc.") No. 1 at 9-18.)
The Court of Appeal rejected the first contention (Ldgd. Doc. No. 3 at 9-11) but, in response to the second contention, modified petitioner's sentence accordingly (id. at 11).
Petitioner filed a Petition for Review in the California Supreme Court, contending that the trial court had violated his right to due process in declining to dismiss the prior serious felony conviction. (Ldgd. Doc. No. 4.) The Supreme Court summarily denied review. (Id.)
Petitioner concedes that he has made no other applications for relief in the state courts. (Dkt. No. 1 at 6-7, 12, 26-28.) However, petitioner asserts that his failure to exhaust state court remedies as to his instant federal claims is excused by the existence of newly-discovered evidence. (Dkt. No. 19 at 2-3.) Petitioner seeks the court's assistance in obtaining this and related evidence from the Sacramento County District Attorney and the Warden of the California Training Facility in Soledad (respondent herein), pursuant to petitioner's motion to ...