The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS DATED OCTOBER 19, 2012 (Doc. 12) FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR LACK OF EXHAUSTION ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The instant petition was filed on August 14, 2012. (Doc. 1). On September 20, 2012, the Court ordered Petitioner to file a motion to amend the caption to reflect the proper respondent, Audrey King, the Director of the Coalinga State Hospital. (Doc. 6). On October 1, 2012, and again on October 5, 2012, Petitioner filed identical motions to amend the caption to reflect that the proper Respondent is Ms. King. (Docs. 8 & 10).
On October 19, 2012, after conducting a preliminary screening of the petition and having 2 concluded that the claims therein were completely unexhausted, the Court issued Findings and 3 Recommendations to dismiss the petition on exhaustion grounds. (Doc. 12). Those Findings and 4 Recommendations were premised on the assumption that Petitioner was a state prisoner challenging a 5 state conviction and sentence pursuant to 28 U.S.C. § 2254. The Findings and Recommendations gave 6 Petitioner twenty days within which to file objections. On November 9, 2012, Petitioner filed 7 objections, in which he argues that he is not subject to the provisions of the Anti-Terrorism and 8 Effective Death Penalty Act ("AEDPA") contained in 28 U.S.C. § 2254, since he has yet to be 9 convicted and is challenging his pre-conviction detention. (Doc. 14). Instead, Petitioner contends that he is a pre-conviction detainee proceeding pursuant to 28 U.S.C. § 2241(c)(3). In light of Petitioner's allegations, the Court has reconsidered its earlier screening of the petition and concluded that, even as a petition brought under 28 U.S.C. § 2241 by a pre-conviction state detainee, the petition must be dismissed for lack of exhaustion. Accordingly, the Court ORDERS its prior Findings and Recommendations (Doc. 12) WITHDRAWN, and issues this new Findings and Recommendations.
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. The exhaustion doctrine is based on comity and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 2 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis). 3
Additionally, the petitioner must have specifically told the state court that he was raising a 4 federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th 5 Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); 6 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court 7 reiterated the rule as follows: 8 9
In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "opportunity to pass upon and correct alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.
Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:
Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7 . . . (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds. Hiivala v. Wood, 195 F3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); . . . .
In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for 5 reviewing the claim may be or how obvious the violation of federal law is. 6 ...