The opinion of the court was delivered by: Sheri Pym United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Petitioner Karampal Singh Nakai filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 on July 20, 2011. This matter comes before the court on respondents' motion to dismiss the petition for failure to exhaust state remedies. All parties having consented to proceed before the assigned magistrate judge, and with briefing completed, the matter is ready for decision.
Because, at a minimum, the petition is mixed and may very well be fully unexhausted, the motion to dismiss will be granted. Further, because petitioner's one arguably exhausted claim is barred from relitigation in federal courts and petitioner has failed to show the good cause necessary for a stay pursuant to Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005), the petition will be denied and the action dismissed without prejudice.
On June 6, 2008, a Riverside County jury found petitioner guilty of two counts of attempting to send harmful matter to a minor with the intent to seduce the minor (Cal. Penal Code §§ 664, 288.2(a)). CT at 258-59. On August 29, 2008, the trial court sentenced petitioner to 270 days in the custody of the Riverside County Sheriff and thirty-six months of formal probation. CT at 282.
Petitioner filed a petition for direct review in the California Court of Appeal. Lodg. 3. On April 2, 2010, the California Court of Appeal affirmed petitioner's conviction. Lodg. 7.
Petitioner then filed a petition for review in the California Supreme Court on May 17, 2010, arguing: (1) because petitioner had a reasonable expectation of privacy in email conversations, the trial court's refusal to exclude petitioner's internet communications from evidence violated Cal. Penal Code § 632, which requires the exclusion of recordings of confidential communications made without the joint knowledge and consent of the participants; (2) the trial court erred in refusing to give a lesser-included offense jury instruction when it ignored substantial evidence that a reasonable jury could find petitioner guilty of the lesser-included offense; and (3) venue was not proper in Riverside County. Lodg. 8 at 4-15. On July 21, 2010, the California Supreme Court denied the petition without comment. Lodg. 9.
Petitioner filed the instant federal habeas petition on July 20, 2011. He raises the following grounds for relief: (1) the trial court's refusal to instruct the jury on a lesser-included offense violated petitioner's Sixth Amendment right to a jury trial; (2) the trial court's refusal to give the lesser-included offense instruction violated petitioner's Fourteenth Amendment right to due process; (3) the arbitrary deprivation of petitioner's statutory right to have confidential communications violated petitioner's Fourteenth Amendment right to due process; (4) the trial court's admission of petitioner's confidential communications violated his Fourth Amendment right to be free of unreasonable seizures. Pet. at 5-6; Mem. in Supp. of Pet. at 4-21.
A. The Petition Must Be Dismissed Without Prejudice Because, at a Minimum, the Petition Is a Mixed Petition It is well established that, before a state prisoner may challenge his state conviction in federal court via a federal habeas petition, he must first exhaust his federal grounds for relief in state court. 28 U.S.C. § 2254(b); see also Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (per curiam). To satisfy the exhaustion requirement, a petitioner must "fairly present" his federal claims to the state courts, "to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan, 513 U.S. at 365(internal quotation marks and citation omitted). "To provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court (including ...