ORDER DENYING PETITIONER'S MOTION TO STAY PROCEEDINGS (Doc. 2)
ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE DISMISSED BECAUSE IT CONTAINS
NO EXHAUSTED CLAIMS THIRTY DAY DEADLINE
JENNIFER L. THURSTON, Magistrate Judge.
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 September 16, 2013. (Doc. 1). The petition raises the following claims: (1) actual innocence of first degree murder based on the confession and excited utterances of a co-defendant; and (2) use of "deceptive and reprehensible methods" to obtain conviction of Petitioner in violation of his due process rights. (Doc. 1).
Along with the petition, Petitioner filed the instant motion for stay of proceedings, alleging that his claims are presently being exhausted in the California Court of Appeal, Fifth Appellate District, by way of a petition for writ of habeas corpus filed on August 10, 2013. (Doc. 2, p. 1).
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. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court 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). In this instance, the highest state court would be the California Supreme Court. 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 U.S. 1, 112 S.Ct. 1715, 1719 (1992) (factual basis).
Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan , 513 U.S. at 365-66; Lyons v. Crawford , 232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood , 195 F.3d 1098, 1106 (9th Cir.1999); Keating v. Hood , 133 F.3d 1240, 1241 (9th Cir.1998).
Here, a review of the petition indicates that, in Petitioner's direct appeal, he raised issues regarding instructional error on elements of the special circumstances allegation and various evidentiary rulings of the trial judge. (Doc. 1, p. 2). It also appears that Petitioner's instructional argument was successful in obtaining a partial reversal from the California Supreme Court on January 23, 2012. (Doc. 1, p. 43). The state high court reversed the Court of Appeal "to the extent it affirmed the jury's true findings on the special circumstances of murder in the commission of a robbery and burglary... and the sentence of life imprisonment without the possibility of parole...." (Id.). However, in all other respects, the conviction and sentence were affirmed. (Id.).
Nowhere in his petition does Petitioner allege that he raised the claims now contained in the instant habeas petition in his direct appeal. Nor, indeed, does Petitioner state with particularity that the two claims now raised in the instant petition are in fact the same claims he is attempting to exhaust in the state habeas petition in the Fifth Appellate District. However, assuming that this is the case, it appears at this juncture that neither of the two claims contained in the instant petition have ever been presented to the California Supreme Court. If that is the case, then the petition contains only unexhausted claims, and this Court cannot entertain an entirely unexhausted petition. Rose v. Lundy , 455 U.S. 509, 521-22 (1982); Calderon v. United States Dist. Court , 107 F.3d 756, 760 (9th Cir. 1997).
However, recognizing that Petitioner may possess additional information that he has not presented to the Court regarding his exhaustion efforts, the Court will afford Petitioner the opportunity to file a response to the Order to Show Cause within thirty days in order to provide any additional information regarding whether the claims now presented in the instant petition have been fully exhausted. Unless Petitioner can establish that at least one of the two claims in ...