REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on September 18, 2012. The Petition alleges that Petitioner's trial counsel rendered ineffective assistance by failing to investigate alleged alibi witnesses and failing to present evidence that assertedly would have proven Petitioner's alleged innocence. Respondent filed an Answer on February 8, 2013, asserting, inter alia, that the claims in the Petition are unexhausted. On April 4, 2013, Petitioner filed: (1) "Petitioner's Objection to Respondent's Answer for Petition for Writ of Habeas Corpus, etc."; and (2) a "Memorandum of Points and Authorities in Support of Petitioner's Objection to Respondent's Answer."
A jury found Petitioner guilty of two counts of forcible lewd acts on a child in violation of California Penal Code section 288(b)(1), one count of sexual penetration by a foreign object in violation of California Penal Code section 289(a)(1), and one count of lewd act on a child in violation of California Penal Code section 288(a) (Reporter's Transcript ["R.T."] 212-13; Clerk's Transcript ["C.T."] 116-17, 126-31, 148). The jury found Petitioner not guilty of another count of lewd act on a child (R.T. 214; C.T. 117, 132). The jury deadlocked on another count of forcible lewd act on a child, and the court declared a mistrial as to that count (R.T. 212, 215; C.T. 116, 127). Petitioner received a total prison sentence of twenty years (R.T. 224; C.T. 134-35, 148-49).
The Court of Appeal affirmed the judgment (Respondent's Lodgment 6; see People v. Aragon, 2011 WL 2671814 (Cal.App. July 8, 2011)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 8).
A federal court will not grant a state prisoner's petition for writ of habeas corpus unless it appears that the prisoner has exhausted available state remedies. 28 U.S.C. § 2254(b) - (c); Baldwin v. Reese , 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel , 526 U.S. 838, 842 (1999). "Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan v. Boerckel , 526 U.S. at 844. The exhaustion requirement seeks to avoid "the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." Id. at 844-45 (citations, internal brackets and quotations omitted). Exhaustion is considered on a "claim-by-claim" basis. Insyxiengmay v. Morgan , 403 F.3d 657, 667 (9th Cir. 2005). Petitioner bears the burden to show compliance with the exhaustion requirement. See, e.g., Cartwright v. Cupp , 650 F.2d 1103, 1104 (9th Cir. 1981), cert. denied, 455 U.S. 1023 (1982); see also Brown v. Cuyler , 669 F.2d 155, 158 (3d Cir. 1982); Jones v. Swarthout, 2012 WL 2934709, at *3 (E.D. Cal. July 18, 2012); Porter v. McEwen, 2011 WL 4433648, at *1 (S.D. Cal. Sept. 22, 2011).
State remedies have not been exhausted unless and until the petitioner's federal claims have been fairly presented to the state's highest court. See Castille v. Peoples , 489 U.S. 346, 350-51 (1989); James v. Borg , 24 F.3d 20, 24 (9th Cir.), cert. denied, 513 U.S. 935 (1994). A claim has not been fairly presented unless the petitioner has described in the state court proceedings both the operative facts and the federal legal theory on which his or her claim is based. Duncan v. Henry , 513 U.S. 364, 365-66 (1995); Anderson v. Harless , 459 U.S. 4, 6 (1982); Weaver v. Thompson , 197 F.3d 359, 364 (9th Cir. 1999). Once the prisoner has fairly "presented the substance of his [or her] claim" to the highest court of the state, the exhaustion requirement has been satisfied. Vasquez v. Hillery , 474 U.S. 254, 257-58 (1986); see Davis v. Silva , 511 F.3d 1005, 1011 (9th Cir. 2008).
Petitioner raised only two claims in the petition for review he filed with the California Supreme Court (Respondent's Lodgment 7). These claims alleged that the trial court committed error: (1) in failing to make personal inquiry of Petitioner during sentencing; and (2) in instructing the jury regarding unanimity. Id . In the first claim, Petitioner argued that the Superior Court erred when the court failed to inquire personally of Petitioner after Petitioner's counsel reported at sentencing that Petitioner had a "specific problem" concerning the presentation of the case. Petitioner argued that a personal inquiry had been necessary in light of People v. Marsden , 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970), California's seminal case on substitution of counsel (Respondent's Lodgment 7, pp. 14-20). In support of this argument, Petitioner asserted that he had been "dissatisfied" with trial counsel because counsel allegedly had made statements to the court on which counsel could not "follow through, " prevented Petitioner from addressing the court, and opposed the request of Petitioner's father to speak at sentencing concerning trial counsel's supposed derelictions (Respondent's Lodgment 7, pp. 3, 13, 15-16, 19-20). Petitioner made these assertions in the petition for review in the context of contending that the court should have "made inquiry into the specific complaints which were the genesis of [Petitioner's] issues with counsel" (Respondent's Lodgment 7, pp. 13-14). In the second claim in the petition for review, Petitioner argued that the trial court's unanimity instructional error as to Count 5 was not harmless (Respondent's Lodgment 7, pp. 20-21).
Regardless of whether the petition for review contained the "operative facts" underlying Petitioner's present claims of ineffective assistance of counsel, it is clear that the petition for review did not fairly present the federal legal theory of ineffective assistance of counsel. The legal theory of ineffective assistance is materially distinct from the legal theories of Marsden error and instructional error. Consequently, the petition for review did not exhaust Petitioner's present claims. See Duncan v. Henry , 513 U.S. at 365-66; cf. Gross v. Warden, Lebanon Correctional Inst. , 426 Fed.App'x 349, 359 (6th Cir. 2011) ("Raising the claim of ineffective assistance of counsel for failure to pursue a plea of NGRI [not guilty by reason of insanity] does not preserve [for exhaustion purposes] the claim that the trial court erred by failing to grant substitute counsel who would enter a plea of NGRI.") (citations omitted).
The California Supreme Court's website does not reflect, and Petitioner does not contend, that Petitioner has filed any petition in that court concerning his criminal conviction other than the petition for review. Therefore, the present Petition is completely unexhausted.
Petitioner still may be able to present his unexhausted claims to the California Supreme Court. See In re Harris , 5 Cal.4th 813, 825, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993) ("[H]abeas Corpus has become a proper remedy in this state to collaterally attack a judgment of conviction which has been obtained in ...