The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Dolly M. Gee, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On December 10, 2010, Roy Rios Alvarez, Jr. ("Petitioner"), filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition"). (ECF No. 1.) On March 14, 2011, Respondent filed a Motion to Dismiss the Petition for failure to exhaust state judicial remedies. (ECF No.13.) On May 11, 2011, Petitioner filed a pleading entitled "Sixth Amendment Right to Effective Assistance of Counsel was Violated," along with supporting exhibits, which the Court construed as Supplemental Exhibits in Support of the Petition. (ECF No. 22.) On May 20, 2011, Petitioner filed another Supplemental Exhibit. (ECF No. 20.) Petitioner did not file an Opposition to the Motion to Dismiss. Thus, this matter is ready for decision.
On January 27, 2009, Petitioner was convicted after a jury trial in the Los Angeles County Superior Court, case number NA079054, of assault with a deadly weapon (Cal. Penal Code § 245(a)(1)) and attempted criminal threats (Cal. Penal Code §§ 422, 664). On February 18, 2009, Petitioner was sentenced to a total state prison term of forty-two years to life. (Lodgment No. 1.)
Petitioner appealed to the California Court of Appeal, case number B214382. On May 25, 2010, the court of appeal ordered the correction of the abstract of judgment to reflect the trial court's oral pronouncement of sentence, but otherwise affirmed the judgment. (Lodgment No. 2.)
Petitioner then filed a petition for review in the California Supreme Court, case number S183401. (Lodgment No. 3.) On July 28, 2010, the supreme court denied the petition. (Lodgment No. 4.)
Petitioner has not sought habeas corpus relief in the California Supreme Court. (Pet. at 3; Official Records of California Courts.*fn1
Petitioner's sole claim raised in the current Petition is ineffective assistance of trial counsel. (Pet. at 5.) Based on the accompanying exhibits, Petitioner appears to contend that counsel was ineffective for failing to present available evidence to support a defense that Petitioner was under the influence of prescribed medications at the time he committed the crimes. (Id. Exs. A-U.)
As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S. Ct. 1198, 71 L. Ed. 2d 179 (1982). The habeas statute now explicitly provides that a habeas petition brought by a person in state custody "shall not be granted unless it appears that-- (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1).
Exhaustion requires that the prisoner's contentions be fairly presented to the state courts and be disposed of on the merits by the highest court of the state. See James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979). A claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th ...