Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.*fn1 Petitioner has submitted a declaration that makes the showing required by § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. See 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by fairly presenting to the highest state court all federal claims before presenting them to the federal court. See Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986). A federal claim is fairly presented to the state courts if the petitioner has described the operative facts and legal theory upon which his claim is based. See Bland v. California Dep't of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). "[I]t is not enough . . . that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982). As a rule, the "mere similarity of claims is insufficient to exhaust." Duncan v. Henry, 513 U.S. at 365-66. A claim is also unexhausted if it contains new factual allegations which "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. Chacon v. Wood, 36 F.3d 1459, 1469 n.9 (9th Cir. 1994). The introduction of new evidence affects the fair presentation requirement when it "substantially improves the evidentiary basis" for petitioner's claims. Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988). However, new factual allegations that are cumulative of those presented to the state court do not transform the claim and thus do not require exhaustion. See Hillery v. Pulley, 533 F. Supp. 1189, 1200-02 (E.D. Cal. 1982), aff'd, 733 F.2d 644 (9th Cir. 1984), aff'd, 474 U.S. 254 (1986).
Here, the court is unable to determine from the face of the petition if petitioner has properly exhausted his claims in state court. In his pending federal petition, petitioner claims that the trial court erred in ignoring his objections both concerning his readiness to proceed to trial and his attorney's failure to assist him with his defense. (Doc. No. 1 at 4.) It is clear that these claims were not presented in the habeas petition filed by petitioner with the California Supreme Court in January 2012.*fn2 However, the court is unable to determine if petitioner raised these claims of alleged trial court error in his direct appeal to the California Court of Appeal for the Third Appellate District and/or in a petition for review before the California Supreme Court. Therefore, the court will direct petitioner to file an amended habeas petition in which he clarifies the claims he raised in his state court appeal and whether he has exhausted the claims set forth in his federal petition by presenting them first to the California Supreme Court.*fn3
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's June 6, 2012 application requesting leave to proceed in forma pauperis (Doc. No. 2) is granted;
2. Within thirty days from the service of this order, petitioner shall file an amended habeas petition that complies with the requirements of the Federal Rules of Civil Procedure; the amended petition must bear the docket number assigned this case and must be labeled "Amended Petition;" petitioner must use the form petition provided by the court and answer each question, specifically providing information concerning any claims or issues he raised in the California Court of Appeal and, more importantly, in the California Supreme Court*fn4 ; petitioner's failure to file an amended petition in accordance with this order will result in the dismissal of this action; and
3. The Clerk of the Court is directed to provide petitioner a copy of the court's form habeas ...