The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently pending before the court is respondent's motion to dismiss certain claims for failure to exhaust, filed on April 2, 2012. Doc. 7.
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).
It is not enough that all the facts necessary to support the federal claim were before the state courts, Picard, at 277, 92 S.Ct ., at 513, or that a somewhat similar state-law claim was made. See Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887 (1995). The habeas petitioner must have "fairly presented" to the state courts the "substance" of his federal habeas corpus claim. Picard, supra, 404 U.S. at 275, 277-278, 92 S.Ct. at 512, 513-514. See also, Rose v. Lundy, 455 U.S. 509, 102 S .Ct. 1198, 1204 (1982).
Petitioner has the burden of proving exhaustion of state court remedies and in California a petitioner must present his claims to the California Supreme Court. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981); Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986).
Petitioner raises two claims in the instant federal petition: 1) ineffective assistance of counsel for failing to request a limiting instruction regarding petitioner's prior crimes; and 2) ineffective assistance of counsel for failing to seek to exclude petitioner's prior crimes. Respondent notes in his reply that after the filing of this motion, the California Supreme Court denied petitioner's habeas petition regarding claim two, therefore that claim is exhausted. However, respondent maintains that claim one remains unexhausted.
Both claims were raised on direct review before the California Court of Appeal and denied. Lodged Documents (Lod. Doc.) 1, 2. However, petitioner concedes he did not appeal to the California Supreme Court on direct review. Opposition to Motion to Dismiss (Opposition) at 1-2. Petitioner did file a habeas petition with the California Supreme Court. Lod. Doc. 5. The petition only raised the claim that counsel was ineffective for failing to seek to exclude evidence of petitioner's prior crimes. Id. There was no reference to petitioner's other claim in the instant federal petition regarding a limiting instruction to the jury. Id. This petition was denied without comment or citation on May 9, 2012. Respondent's Reply at 3. Thus, claim one should be stricken as unexhausted and the petition should continue solely on claim two.
Accordingly, IT IS HEREBY ORDERED that a district judge be assigned to this case.
IT IS HEREBY RECOMMENDED that:
1. The motion to dismiss (Doc. 7) be granted and claim one should be stricken as unexhausted and this petition should ...