FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 22, 2011, respondent filed the pending motion to dismiss the petition, arguing that petitioner has failed to properly exhaust his federal habeas claims by first fairly presenting them to the highest state court. Petitioner has filed an opposition to the motion.
On August 6, 2007, a Sacramento County Superior Court jury found petitioner guilty of second-degree robbery. Subsequently, the trial court found a number of enhancement allegations regarding petitioner's prior convictions to be true. On January 16, 2009, the trial court sentenced petitioner to seventeen years in state prison. On June 29, 2010, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. Petitioner did not file a petition for review with the California Supreme Court. (Pet. at 2-3, Resp't's Mot. to Dismiss Ex. A & Lodged Docs. 1 & 2.)
On May 3, 2010, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court, which was denied on June 11, 2010.*fn1 On October 25, 2010, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, which was denied on November 4, 2010. Finally, on November 10, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on May 18, 2011. (Resp't's Lodged Docs. 4-9.)
On May 26, 2011, petitioner commenced this action by filing a federal petition for writ of habeas corpus. In his petition, petitioner asserts three claims: (1) ineffective assistance of counsel, (2) a due process violation, and (3) ineffective assistance of appellate counsel. (Pet. at 5-6.)
RESPONDENT'S MOTION TO DISMISS
Counsel for respondent argues that petitioner failed to exhaust his claims for habeas relief in state court. Specifically, counsel for respondent argues that the sole filing petitioner submitted to the California Supreme Court was a petition for writ of habeas corpus. Therein, petitioner presented a single ineffective assistance of counsel claim. Counsel for respondent acknowledges that petitioner asserts the same claim in Ground 1 of the pending federal petition in this case. However, counsel maintains that petitioner failed to present to the California Supreme Court the claims set forth in Grounds 2 and 3 of the pending federal petition. Accordingly, counsel for respondent concludes that petitioner has filed a "mixed" petition which this court should dismiss. (Resp't's Mot. to Dismiss at 3-4.)
II. Petitioner's Opposition
Petitioner has filed several conflicting responses to respondent's motion to dismiss. First, petitioner has filed a document styled "'Objection' to the Motion to Dismiss" in which he argues that, while he may have included some of his claims in the wrong sections of his form petition to the California Supreme Court, he nevertheless included all of his claims in his petition presented for the state high court's review. Next, petitioner has filed a motion to amend his federal habeas petition in which he asks this court to dismiss Grounds 2 and 3 of the pending petition. Finally, on the same day petitioner filed his motion to amend, he also filed an "Addendum to Objection to Motion to Dismiss" in which he contends that did not deliberately bypass any state procedures and, in any event, he provided the state a full opportunity to review all of his claims even if he placed them in the incorrect place on the form petition.*fn2 (Petn'r's Objection to the Mot. to Dismiss at 2-3, Petn'r's Mot. to Amend at 1 & Petn'r's Addendum at 1-3.)
I. Exhaustion of State Court Remedies
State courts must be given the first opportunity to consider and address a state prisoner's habeas corpus claims. See Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) ("Habeas petitioners have long been required to adjudicate their claims in state court - that is, 'exhaust' them - before seeking relief in federal court."); Farmer v. Baldwin, 497 F.3d 1050, 1053 (9th Cir. 2007) ("This so-called 'exhaustion requirement' is intended to afford 'the state courts a meaningful opportunity to consider allegations of legal error' before a federal habeas court may review a prisoner's claims.") (quoting Vasquez v. Hillery, 474 U.S. 254, 257 (1986)). In general, a federal court will not grant a state prisoner's application for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1). The exhaustion requirement will not be deemed to have been waived unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).
A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting the claims to the federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). A federal claim is fairly presented if the petitioner has described the operative facts and the federal legal theory upon which his claim is based. See Wooten, 540 F.3d at 1025 ("Fair presentation requires that a state's highest court has 'a fair opportunity to consider . . . and to correct [the] asserted constitutional defect.'"); Lounsbury v. Thompson, 374 F.3d 785, 787 (9th Cir. 2004) (same) (quoting Picard, 404 U.S. at 276)); Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), ...