The opinion of the court was delivered by: Honorable Michael W. Fitzgerald United States District Judge
MEMORANDUM AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Milorad Olic filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition") on January 24, 2013. Petitioner presents five grounds for relief: (1) ineffective assistance of counsel; (2) denial of right to contact the Serbian embassy; (3) under-representation of Mexican Americans in the jury pool; (4) judicial misconduct; and (5) denial of doctor-prescribed meal and medicine, constituting systematic torture. Pet. at 5-7; Pet. P. & A. at 1-8.
After reviewing the Petition, on January 28, 2013, the Court issued an Order to Show Cause why the Petition should not be dismissed because, as indicated in the Petition, petitioner had not exhausted his state remedies with respect to any of the grounds raised in his Petition. On February 15, 2013, petitioner filed a response to the Order to Show Cause ("Response"), conceding that the claims in the Petition are unexhausted but arguing that lack of exhaustion should be excused due to external factors that prevented petitioner from exhausting the claims. After reviewing all the papers, this Court finds that the Petition must be dismissed without prejudice.
On April 7, 2011, an Orange County jury found petitioner guilty of one count of attempted murder (Cal. Penal Code §§ 664(a), 187(a)) and one count of elder and dependent adult abuse (Cal. Penal Code § 368(b)(1)). The jury found true the allegations of premeditation and deliberation on the attempted murder charge and the allegations of great bodily injury on an elder and personal use of a deadly weapon, on both charges (Cal. Penal Code §§ 1192.7, 12022(b)(1), 12022.7(c)). Pet. at 2; Pet. App. B.*fn1 On June 24, 2011, the trial court sentenced petitioner to a total term of thirteen years to life with the possibility of parole for attempted murder and the enhancements, and stayed execution of the three-year sentence for elder and dependent adult abuse and the enhancements. Pet. at 2; Pet. App. B.
Petitioner filed a petition for direct review in the California Court of Appeal. Petitioner contended the trial court erred by granting his request for self-representation pursuant to Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Pet. App. B. Petitioner also contended that the trial court erred in its jury instructions by giving CALCRIM No. 372 because that particular instruction permitted the jury to infer guilt from petitioner's conduct of fleeing or attempting to flee. Id.
On August 14, 2012, the California Court of Appeal rejected both of petitioner's arguments and affirmed his conviction. Id.
Petitioner's petition for review in the California Supreme Court was denied without comment on October 17, 2012. Pet. App. A.
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 a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 158 L. Ed. 2d 64 (2004) (citations omitted).
To "fairly present" a federal claim to the state's highest court, the petitioner must alert that court to the claim in the brief or petition presented to that court. Baldwin, 541 U.S. at 31-32. A state prisoner does not "fairly present" a claim to a state court if that court must read beyond the petition or a brief to find material, such as a lower court opinion in the case, that does so. Id. Further, the petitioner must describe boththe federal legal theory andthe operative facts to the state court so that court has a "'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1982) (per curiam) (citation omitted). In describing the federal legal theory to the state court, a petitioner must identify the specific federal claim; general appeals to a constitutional guarantee as broad as due process are insufficient to fairly present the "substance" of a federal claim to a state court. See Gray v. Netherland, 518 U.S. 152, 163, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996).
Here, it is apparent petitioner failed to raise any of his five asserted grounds for federal habeas relief in the California courts. The Petition states that none of the grounds it raises have been ruled on by either the California Court of Appeal or the California Supreme Court. Pet. at 5-6. In his Response to the Court's Order to Show ...