The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss filed August 1, 2011. After carefully considering the record, the undersigned recommends that respondent's motion be granted.
This action is proceeding on the amended petition filed May 4, 2011. Petitioner raises the following claims. First, petitioner alleges that there was insufficient evidence to support the 2008 decision by the California Board of Parole Hearings ("BPH") finding him unsuitable for parole. In support of this claim, petitioner alleges that the BPH relied on erroneous information in finding him unsuitable. Second, petitioner alleges that the lawyer representing him at the 2008 suitability hearing was ineffective. Third, petitioner alleges that the BPH violated the Ex Post Fact Clause by retroactively applying California Penal Code § 3041.5 and setting his next suitability hearing in five years. Petitioner also generally alleges that he is being held in prison in violation of his constitutional rights. This general claim appears to be made in support of the first three claims.
Respondent first argues that this action should be dismissed because petitioner failed to exhaust state court remedies.
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). 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); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985).
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 v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008) ("Fair presentation requires that a state's highest court has 'a fair opportunity to consider and to correct [the] asserted constitutional defect.'").
Respondent argues that petitioner has not exhausted his Ex Post Facto claim because it has not been presented to the California Supreme Court. Respondent states that petitioner filed a habeas corpus petition in the California Supreme Court raising the other claims raised in this action, but not the Ex Post Facto claim. A copy of this petition is attached as exhibit 1 to respondent's motion. After reviewing this petition, the undersigned agrees that petitioner did not raise his Ex Post Facto claim in this petition. In his opposition to respondent's motion, petitioner does not deny that he did not raise his Ex Post Facto claim in this petition or any other petition filed in the California Supreme Court. Accordingly, the undersigned finds that petitioner's Ex Post Facto Claim is not exhausted.
In denying petitioner's habeas corpus petition that raised petitioner's remaining claims, the California Supreme Court issued an order citing only People v. Duvall, 9 Cal.4th 464, 474 (1995). (Dkt. No. 17-1 at 2.) Under California law, a citation to Duvall indicates that a petitioner has failed to state his claim with sufficient particularity for the state court to examine the merits of the claim, and/or has failed to "include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations." Duvall, 9 Cal.4th at 474.
Respondent argues that the citation to Duvall indicates that petitioner did not fairly present his claims to the California Supreme Court because he did not attach the entire transcript from the 2008 suitability hearing to his California Supreme Court petition. Pages 1-32 of the transcript from petitioner's 2008 suitability hearing are attached to his habeas petition filed in the California Supreme Court. (Dkt. No. 17-1 at 83-114.) According to the index from this transcript, the entire transcript is 118 pages long. (Id. at 84.)
In the opposition to the motion to dismiss, petitioner claims that he provided the California Supreme Court with the entire transcript from his 2008 suitability hearing. In the reply, respondent states that respondent's counsel provided this court with the entire record furnished to him by the ...