The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was initially convicted on three counts of murder. On appeal, the California Court of Appeal modified the judgment so that petitioner was only convicted of one count of murder with true findings of the special circumstances that the murder was committed during the commission or attempted commission of robbery and burglary. Additionally, there were true findings that petitioner personally used a firearm in the commission of the offense and that a principal was armed with a firearm in the commission of the offense. Petitioner received a sentence of life without the possibility of parole plus ten years imprisonment. Petitioner raises the following issues in his federal habeas petition:
Trial court denied Petitioner due process and right to an impartial jury by refusing to declare a mistrial due to jury misconduct and court error in assigning trial to inadequate court facilities resulting in security measures which repeatedly conveyed prejudicial extraneous information about Petitioner to jurors without a showing of manifest necessity and failure to dismiss juror #11 for actual bias in violation of Petitioner's 5th, 6th, and 14th Amendment rights per constitution of [the] United States. (Pet'r's Pet. at p. 7.) Before the court is respondent's motion to dismiss the habeas petition due to a lack of exhaustion as well as petitioner's motion to stay the habeas petition. For the following reasons the motion to stay should be denied. The motion to dismiss should be granted but petitioner should be given leave to file an amended habeas petition.
Petitioner first appealed his conviction and sentence to the California Court of Appeal. Among the claims that petitioner raised on direct appeal was that "the trial court denied him his due process and right to a trial by an impartial jury when it refused to declare a mistrial due to jury misconduct and in the case of JN 11 failed to conduct sufficient inquiry to determine whether good cause existed to discharge JN 11." (Resp't's Lodged Doc. No. 2 at p. 14.) The Court of Appeal denied petitioner relief on these issues. (See Resp't's Lodged Doc. No. 5 at p. 12-22.) Petitioner then filed a petition for review to the California Supreme Court which raised these issues amongst others. (See Resp't's Lodged Doc. No. 6). The California Supreme Court summarily denied the petition for review on January 13, 2010. (See Resp't's Lodged Doc. 7.)
Petitioner then filed the instant federal habeas petition in this court. On October 5, 2011, respondent filed a motion to dismiss the habeas petition for failure to exhaust state court remedies. Petitioner then filed a response to respondent's motion to dismiss along with a motion to stay the habeas petition. (See Dkt. Nos. 18, 19.) Thereafter, respondent filed a response to petitioner's motion to stay and a reply to the motion to dismiss. (See Dkt. No. 21.)
Respondent argues that the federal habeas petition 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). To exhaust state court remedies, the prisoner must "fairly present" both operative facts and federal legal theory supporting his federal claim to the state's highest court, "thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004).
"[N]ew factual allegations do not ordinarily render a claim unexhausted." Beaty v. Stewart, 303 F.3d 975, 989 (9th Cir. 2002). A claim is unexhausted only if new factual allegations "fundamentally alter the legal claim already considered by the state courts." Vasquez v. Hillery, 474 U.S. 254, 260 (1986). It is not necessary that "every piece of evidence" supporting federal claims have been presented to the state court. See Chacon v. Wood, 36 F.3d 1459, 1469 n. 9 (9th Cir. 1994). Rather, the introduction of new evidence affects the fair presentation requirement only when it "substantially improves the evidentiary basis" for petitioner's claims. See Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988).
Respondent asserts that petitioner only raises one claim in his federal habeas petition. Therefore, respondent argues that the habeas petition should be considered completely unexhausted. However, for the reasons that follow, petitioner actually raises two separate distinct claims in his federal habeas petition.
First, petitioner asserts that the courtroom facilities were inadequate and improperly influenced the jury against the petitioner (hereinafter referred to as "Claim I"). Petitioner recites a litany of instances where jurors witnessed the bailiffs conduct their security measures which included surrounding petitioner while the jury left the courtroom during recesses. (See, e.g., Pet'r's Pet. at p. 10.)
Petitioner's second claim is that juror number 11 was biased against petitioner (hereinafter referred to as "Claim II"). Petitioner bases this claim on a note submitted to the trial judge by this juror. According to petitioner, juror number 11 expressed concern about petitioner using her personal information. The juror expressed her concern in light of the jury questionnaires that the petitioner was able to view during voir dire
In effect, the issues raised by petitioner in his federal habeas petition are two separate and distinct claims. The first claim asks the court to examine the courtroom facilities and security measures used at trial and how they affected trial. The second claim asks the court to examine the potential bias of juror number 11 based on the note she passed to the trial judge. Respondent's motion to dismiss does not address whether Claim II is unexhausted. However, a review of the state court filings reveals that petitioner has exhausted this claim. Thus, the petition is not completely unexhausted as respondent argues. At best for respondent, the petition is mixed.
Respondent states that Claim I is unexhausted because "Petitioner never asserted in state court that his right to an impartial jury was affected by the positioning of courtroom security personnel around him whenever jurors left or entered the courtroom." (Dkt. No. 14 at p. 5.) Respondent notes that "Petitioner itemizes thirty-four separate occasions when these security measures occurred." (Id. at p. 4.) According to respondent, petitioner only argued in state court that the jurors inferred that he was in custody and improperly discussed his custody status. (See id. at p. 5.) Thus, respondent claims that the additional factual allegations "place ...