REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, 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" on May 31, 2013. Respondent filed an Answer and lodged certain documents on August 21, 2013. The Answer asserts that the Petition is unexhausted. Petitioner did not file a Reply within the allotted time.
A Los Angeles Superior Court jury found Petitioner guilty of robbery with the use of a firearm (Petition at 2). The California Court of Appeal affirmed the conviction (Lodgment 2). Petitioner filed a petition for review in the California Supreme Court, which that Court denied summarily (Lodgments 3 and 4). Petitioner has not filed any other state court petition challenging his conviction or sentence (Petition at 6).
The present federal petition alleges two claims: (1) the trial court's imposition of an upper term sentence assertedly violated the principles of Blakely v. Washington , 542 U.S. 296 (2004), Cunningham v. California , 549 U.S. 270 (2007) and People v. Sandoval , 41 Cal.4th 825, 62 Cal.Rptr.3d 588, 161 P.3d 1146 (2007) (Ground One of Petition); and (2) Petitioner allegedly was denied the effective assistance of counsel when counsel assertedly failed to respond to the court's inquiry into Petitioner's concerns regarding counsel and when the court assertedly failed to conduct a formal Marsden hearing (Ground 2 of Petition). The petition for review Petitioner filed in the California Supreme Court did not mention Ground One of the present Petition (Lodgment 3). As to Ground Two, the petition for review did allege certain respects in which Petitioner's counsel supposedly was ineffective, but did not mention either counsel's asserted failure to respond to the court's inquiry into Petitioner's concerns with counsel or the court's asserted failure to conduct a formal Marsden hearing (Lodgment 3).
A federal court will not grant a state petitioner's petition for writ of habeas corpus unless it appears that the petitioner 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 Coningford v. Rhode Island , 640 F.3d 478, 482 (1st Cir. 2011), cert. denied, 132 S.Ct. 426 (2011); Morgan v. Superior Court of Los Angeles, 2012 WL 6140213, at *2 (C.D. Cal. Oct. 31, 2012), adopted, 2012 WL 6178430 (C.D. Cal. Dec. 11, 2012).
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).
Petitioner has not yet fairly presented to the California Supreme Court either Ground One or Ground Two of the present Petition. The petition for review, the only document Petitioner yet has filed in the California Supreme Court, did not mention Ground One, and did not allege the operative facts on which Ground Two is based. Accordingly, Petitioner's present claims are unexhausted. See id.
Petitioner still may be able to present his unexhausted claims to the California Supreme Court. See, e.g., 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 violation of fundamental constitutional rights.") (citations and quotations omitted); Mendez v. Superior Court , 87 Cal.App.4th 791, 799, 104 Cal.Rptr.2d 839 (2001) (claim that conviction was obtained in violation of fundamental constitutional rights may be raised by state habeas petition; citation and internal quotations omitted); People v. Pope , 23 Cal.3d 412, 426-28, 152 Cal.Rptr. 732, 590 P.2d 859 (1979) (claim of ineffective assistance of counsel may be raised by state habeas petition).
In certain circumstances, the Court has authority to stay a "mixed" petition containing both exhausted and unexhausted claims. See Rhines v. Weber , 544 U.S. 269 (2005); King v. Ryan , 564 F.3d 1133, 1143 (9th Cir.), cert. denied, 558 U.S. 887 (2009) (stay procedure authorized by Kelly v. Small , 315 F.3d 1063 (9th Cir.), cert. denied, 548 U.S. 1042 (2003), overruled on other grounds, Robbins v. Carey , 481 F.3d 1143 (9th Cir. 2007), remains available after Rhines v. Weber ).
However, the present Petition is not mixed; it is completely unexhausted. The Court cannot stay a completely unexhausted petition. See Rasberry v. Garcia , 448 F.3d 1150, 1154 (9th Cir. 2006) (Rhines stay inappropriate); Dimitris v. Virga, 2012 WL 5289484, at *4 & n.3 (C.D. Cal. Feb. 16, 2012), adopted, 2012 WL 5267741 (C.D. Cal. Oct. 22, 2012) (Rhines and Kelly stays inappropriate); Jarrar v. Barnes , 2009 WL 2394361, at *1 n.1 (E.D. Cal. Aug. 4, 2009) (Kelly stay inappropriate); Tappin v. United States District Court , 2008 WL 686555, at *8 (E.D. Cal. Mar. 11, 2008) (same). ...