The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition filed on December 20, 2010. Pending before this court is respondent's March 8, 2011 motion to dismiss the petition on the ground that its sole claim for ineffective assistance of counsel is unexhausted. After carefully reviewing the record and the applicable law, the undersigned concludes that the motion should be granted.
In 2008, following a jury trial in the Sacramento County Superior Court, petitioner was convicted of murder committed in the attempted commission of a robbery (Cal. Penal Code §§ 187(a), 190.2(a)(17)) and attempted robbery (Cal. Penal Code §§ 664/211). On May 30, 2008, the trial court sentenced him to life in prison without possibility of parole with a consecutive sentence of 25 years to life. (Dkt. No. 1 (hereinafter "Ptn.") at 1); Lod. Doc. 1 at 1-2.)
On February 5, 2009, petitioner filed an opening brief in the California Court of Appeal, Third Appellate District, raising the following claims: (1) the abstract of judgment should be amended to properly reflect the actual sentence imposed; (2) the trial court improperly imposed and suspended a parole revocation fine; and (3) the trial court improperly denied any presentence credits for actual days in custody. (Lod. Doc. 1.) Respondent has not lodged the court of appeal's disposition of these claims.
On August 27, 2009, petitioner filed a petition for review in the California Supreme Court in which he again challenged the trial court's imposition of a parole revocation fine. (Lod. Doc. 2.) The California Supreme Court summarily denied the petition on September 30, 2009. (Lod. Doc. 3.)
Petitioner filed the instant petition on December 20, 2010. Respondent filed the instant motion to dismiss on March 8, 2011. Petitioner filed an opposition to the motion on July 13, 2011. Also pending are two motions by petitioner seeking appointment of counsel. (Dkt. Nos. 18, 21.)
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);
It is not enough that all the facts necessary to support the federal claim were before the state courts, Picard, at 277, or that a somewhat similar state-law claim was made. See Duncan v. Henry, 513 U.S. 364, 366 (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. See also, Rose v. Lundy, 455 U.S. 509 (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); ...