The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
As directed in the court's January 19, 2012 order, the parties submitted a joint statement addressing respondent's assertion that twenty one claims in the petition are not exhausted. (Dkt. Nos. 110, 113.) After considering petitioner's position, respondent withdraws any exhaustion-based objections to six claims. (Dkt. No. 113 at 1:15-16.) He maintains that all or portions of claims 1, 22, 23, 24, 25, 26, 27, 28, 31, 32, 33, 34, 35, 39, and 49 are unexhausted.*fn1
After reviewing the parties' joint statement, this court finds oral argument unnecessary and makes the following findings and recommendations.
The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S. 509 (1982); Carothers v. Rhay, 594 F.2d 225 (9th Cir. 1979); 28 U.S.C. § 2254(b). The exhaustion doctrine is based on a policy of federal and state comity, designed to give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971). A petitioner satisfies the exhaustion requirement by providing the highest state court with an opportunity to rule on the merits of the claim. Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982).
The state court has an opportunity to rule on the merits when the petitioner fairly presents the claim to that court. Picard, 404 U.S. at 275. The fair presentation requirement is met where the petitioner has described the "operative facts and the federal legal theory on which his claim is based." Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008). The state claim need not be identical to the federal claim. Picard, 404 U.S. at 277-78. Exhaustion requires only that the substance of the federal claim be fairly presented. Id. at 278.
A federal court claim may require exhaustion because it contains either legal arguments or factual allegations not raised in the state court. If the petitioner did not fairly present the legal basis for the claim to the state court, it is unexhausted. Generally, it is "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); Duncan v. Henry, 513 U.S. 364, 366 (1995). However, an explicit reference to a particular constitutional provision is not necessary if the petitioner's state court pleadings cited "either federal or state case law that engages in a federal constitutional analysis." Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005) (citing Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000)). Essentially, the petitioner must have "alerted the state court that his claims rested on the federal Constitution." Id. (citing Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)).
A claim also is unexhausted if it contains new factual allegations that "fundamentally alter the legal claim already considered by the state courts." Vasquez v. Hillery, 474 U.S. 254, 257-58 (1986). New factual allegations that simply provide additional evidentiary support for the claim do not transform the claim and thus do not require exhaustion. Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir. 1994), superseded by statute on other grounds, 28 U.S.C. § 2253(c). The state court must have been given a fair opportunity to rule on petitioner's claims. That does not mean the claim presented to the state court must in every respect be the same as the claim presented in federal court. Correll v. Stewart, 137 F.3d 1404, 1414 (9th Cir. 1998) ("'claim exhaustion' does not equate to 'evidence exhaustion'"). Were that the case, many aspects of federal habeas law would be null. The federal statute and rules clearly contemplate the possibility of new factual development in federal court. See 28 U.S.C. § 2254(e) (evidentiary hearings); Rule 6, Rules Governing § 2254 Cases (discovery). Further, this court recognizes that requiring a petitioner to present every factual basis for his claim in state court ignores the reality that state court procedures do not always permit full fact-finding.*fn2 If the petitioner presented the legal basis for the claim but was unable to make a substantial factual showing because state court procedures did not permit fact-finding, then the state court has had a sufficient opportunity to rule on the merits of the claim and the exhaustion requirement should be satisfied. See Weaver v. Thompson, 197 F.3d 359, 364-65 (9th Cir. 1999); Miller v. Estelle, 677 F.2d 1080, 1084 n.9 (5th Cir. 1982).
PROCEDURAL BACKGROUND *fn3
On July 18, 1985, petitioner was convicted of three counts of first degree murder and the jury found a multiple murder special circumstance. On August 7, 1985, the jury rendered a verdict of death.
On August 5, 1987, petitioner filed his opening brief in his appeal before the California Supreme Court. On February 29, 1988, petitioner filed a petition for writ of habeas corpus in that court. On August 18, 1988, the California Supreme Court issued an order to show cause directed to three questions raised by petitioner's habeas claims. In 1989, the court ordered an evidentiary hearing on three subjects. Thereafter, petitioner filed four subsequent state habeas petitions and the California Supreme Court expanded the scope of the evidentiary hearing. The state evidentiary hearing began in February 1994. On July 7, 1999, the state evidentiary hearing referee issued his final report.
On June 9, 2003, the California Supreme Court issued reasoned opinions affirming petitioner's conviction and sentence on direct appeal and denying his habeas petitions. People v. Cox, 30 Cal. 4th 916 (2003); In re Cox, 30 Cal. 4th 974 (2003).
Petitioner initiated these federal proceedings in 2004. He filed a petition here on June 28, 2005. (Dkt. No. 32.) Respondent filed an answer in July 2011. (Dkt. No. 96.) In addition to addressing the merits of petitioner's claims, respondent asserts a number of claims are unexhausted and/or procedurally barred.
On June 30, 2005, petitioner filed his sixth state habeas petition. These federal proceedings were stayed during the pendency of that state petition. (Dkt. No. 58.) The California Supreme Court denied the petition on June 9, 2010.
I. Claim 1 - Counsel's Conflict of Interest
In claim 1, petitioner argues his trial counsel had a conflict of interest in violation of his Sixth, Eighth, and Fourteenth Amendment rights. He also argues that, when alerted to the conflicts, the trial court failed to conduct an adequate inquiry. (Dkt. No. 32-1 at 41-47.) Respondent argues petitioner did not raise the Eighth or Fourteenth Amendment aspects of this claim in state court.
In claim I of his opening brief on appeal ("AOB"*fn4 ), petitioner argued he was deprived of effective assistance of counsel due to his attorneys' conflicts of interest. (AOB at 28-42.) Petitioner also argued the trial court failed to conduct an inquiry into the conflict. (AOB at 34-35, 36-37.) Under the heading "Applicable Law," petitioner cited the Sixth Amendment to the United States Constitution and Powell v. Alabama, 287 U.S. 45 (1932) in support of his statement that a criminal defendant has a federal constitutional right to effective assistance of counsel. (AOB at 29.) He continued, "Effective assistance of counsel includes the correlative right to representation that is free from conflicts of interest. (Wood v. Georgia (1981) 450 U.S. 261, 271.)" (AOB at 29-30, additional citations omitted.) He added that an attorney conflict undermines the integrity of criminal proceedings and "in no proceeding is [integrity] more important than in a capital trial in which the state has an independent interest in assuring the reliability of the outcome. (Lockett v. Ohio (1978) 438 U.S. 586, 605.)" (AOB at 30.)
Petitioner sufficiently raised the Fourteenth and Eighth Amendment aspects of this claim in state court by citing Supreme Court case law which clearly relied on those amendments. See Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005). The Supreme Court in Wood specifically held that representation by an attorney acting under a conflict of interest violated the defendants' due process rights. 450 U.S. at 271-74. In fact, the Court made a point of stating that its decision was based on due process grounds. Id. at 273. With respect to the Eighth Amendment, in his state court brief petitioner cited Lockett for the proposition that reliability is particularly important in a capital trial. The Supreme Court in Lockett stated that the heightened concern for reliability in capital sentencing was a requirement of the Eighth and Fourteenth Amendments. 438 U.S. at 605.
Respondent has not shown the California Supreme Court did not have a fair opportunity to consider the Eighth and Fourteenth Amendment aspect of petitioner's claim that his counsel acted under a conflict of interest. The fact that the California Supreme Court may not have mentioned those amendments in ruling on petitioner's claim is not dispositive, as respondent seems to argue, in determining whether petitioner has exhausted an aspect of his claim. See Smith v. Digmon, 434 U.S. 332, 333 (1978) (Exhaustion requirement does not turn on whether state court "chooses to ignore a federal constitutional claim squarely raised."). Claim 1 is exhausted.
II. Claims 22, 23, 24, 25, 26, 27, and 28 - Evidentiary Errors
In these federal claims, petitioner argues trial court error in admitting evidence and/or denying a motion for a mistrial and, in some instances, also argues prosecutorial misconduct. (Dkt. No. 32-1 at 109-126.) In each claim, petitioner argues his Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated. Petitioner's state court claims making the same arguments did not, for the most part, specifically refer to violations of petitioner's federal constitutional rights. (AOB at 43-85, 128-136, 137-143, 86-102, 103-116, 117-127, 144-163.) However, petitioner raised each of these issues, and argued they violated his rights to due process under the Fifth and Fourteenth Amendments, in his state cumulative error claim, claim X in his state appellate brief. (AOB at 179-82.)
Respondent argues that petitioner has not fairly presented the federal underpinnings for his claims by raising them later in the cumulative error claim. Respondent states petitioner may not "borrow language from other discrete claims." (E.g., Dkt. No. 113 at 19:16-17.) Respondent cites federal cases for this argument. The first two cited do not support it. See Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005); Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999). In the third case cited by respondent, Castillo v. McFadden, 399 F.3d 993, 999-1003 (9th Cir. 2005), the court did hold that citation to a federal constitutional provision with respect to one claim did not exhaust it with respect to a separate claim, but that case is not on point. In the present case, in his cumulative error claim, petitioner describes each alleged evidentiary violation initially raised in claims 22 through 28 and argues they resulted in a fundamentally unfair trial in violation of his Fifth and Fourteenth Amendment rights. (AOB at 180-81.) Petitioner "alerted the state court that his claims rested on the federal Constitution." Fields, 401 F.3d at 1020-21. Petitioner has exhausted the Fifth and Fourteenth Amendment aspects of claims 22 through 28.
Respondent's arguments that petitioner failed to raise the Sixth and Eighth Amendment aspects of each claim have better support. Petitioner argues his state cumulative error claim also raised Eighth Amendment issues. He explains that he exhausted the "federal basis of the claim, and the need for heightened reliability in a capital case" in his conclusion to the state cumulative error claim:
Particularly in the context of a capital case, in which the guilt determination cannot be corrected if found to be erroneous after the punishment has been exacted, a trial infected with the serious errors present in this case cannot satisfy the demands of due process. (See People v. Hogan (1982) 31 Cal. 3d 815, 848.) (Dkt. No. 113 at 11-12; AOB at 181-82.) However, the California Supreme Court in Hogan did not rely upon the Eighth Amendment for its "death is different" analysis. Rather, the court cited Mattox v. United States, 146 U.S. 140, 149 (1892), in which the Supreme Court stated that "[i]t is vital in capital cases" that "any ground of suspicion that the administration of justice has been interfered with" cannot be "tolerated." While petitioner is free to argue that ...