The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner proceeding without counsel. On August 30, 2011, respondent filed a motion to dismiss petitioner's application for a writ of habeas corpus, on the ground that the petition contains unexhausted claims. After review of the record, the court finds respondent's motion should be granted in part, and petitioner granted leave to proceed depending upon the election chosen.
Petitioner was convicted on March 23, 2007, of two counts of first degree murder and robbery. (Respondent's Lodged Document ("LD") 1 at 2.) The jury found true the special circumstance allegations that there were multiple murders, and that the murders were committed during the commission of a robbery. The jury also found true the allegations that during the commission of the offenses, petitioner discharged a firearm, caused death or great bodily injury, and personally used a firearm. Petitioner was sentenced to state prison for seventy-eight years to life, plus two consecutive life terms without the possibility of parole. (Id.)
Petitioner filed a timely appeal. On April 7, 2009, the California Court of Appeal, Third Appellate District, affirmed petitioner's conviction and sentence. (LD 4.) On May 18, 2009, petitioner filed a petition for review in the California Supreme Court, raising nine claims. (LD 5.) On July 22, 2009, the petition for review was denied without comment. (LD 6.)
On April 13, 2010, petitioner filed a petition for writ of habeas corpus in the San Joaquin County Superior Court. (LD 7.) Petitioner raised one claim alleging ineffective assistance of appellate counsel. (Id.) On June 8, 2010, the Superior Court denied the petition in a reasoned decision. (LD 8.)
On July 15, 2010, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Third Appellate District, raising the ineffective assistance of appellate counsel claim. (LD 9.) On July 22, 2010, the petition was denied without comment. (LD 10.)
On August 18, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (LD 11.) Petitioner raised one claim of ineffective assistance of appellate counsel and two claims of ineffective assistance of trial counsel. (Id.) On March 30, 2011, the California Supreme Court denied the petition without comment. (LD 12.)
On May 4, 2011, petitioner filed the instant petition raising twelve grounds for relief. (Dkt. No. 1.)
Respondent contends that petitioner failed to exhaust claim 12, petitioner's allegation that trial counsel rendered ineffective assistance by failing to move for dismissal of the robbery charge when the evidence only showed the crime of theft, and, as a result, petitioner's claim 13, alleging cumulative error, is also unexhausted because claim 12 was not included in the cumulative error claim presented to the California Supreme Court. (LD 5.)
Petitioner did not file an opposition to the motion. On October 18, 2011, petitioner was directed to show cause why his failure to oppose the motion should not be deemed a waiver of opposition to the motion. On November 1, 2011, petitioner filed a response to the order to show cause. Petitioner states that his failure to respond to the motion was not intentional, but that petitioner suffers from mental conditions and lacks education. (Dkt. No. 16 at 1.) Petitioner asked the court to "find merit and support this response and rule on his response." (Id. at 2.) However, petitioner's response contains no substantive opposition to respondent's motion.
A federal district court may not entertain a petition for writ of habeas corpus unless the petitioner has exhausted state remedies with respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting those claims to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.). A state court has had an opportunity to rule on the merits of a claim if that claim was fairly presented, that is, the petitioner described the operative facts and legal theory on which the claim is based. Picard, 404 U.S. at 277-78. It is generally "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, "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, 162-63; Picard, 404 U.S. at 271; see also Duncan v. Henry, 513 U.S. 364, 365 (1995) ("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").
Here, petitioner raised one claim of ineffective assistance of trial counsel in the petition for review filed in the California Supreme Court. (LD 5.) In claim 5, petitioner argued that he was denied the effective assistance of counsel when his attorney failed to object to the admission of his co-defendant's hearsay statements that petitioner fired the gun. (Id.) Petitioner raised two claims of ineffective assistance of counsel in the petition for writ of habeas corpus filed in the California Supreme Court. (LD 11.) In ground one, petitioner claimed trial counsel "failed to object as lack of discovery, and investigate evidence, when newly discovered items found in petitioner's shorts were admitted during trial." (Id. at 3.) In ground three, petitioner claimed trial counsel failed to investigate or research the law applicable to petitioner's case. (Id. at 4.) ...