United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner is a state prisoner, proceeding through counsel, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
Petitioner challenges his 2009 conviction on multiple counts of child molestation. Petitioner claims that: defense counsel was ineffective, in violation of the Sixth Amendment; the trial court improperly breached mediation confidentiality; and the prosecutor engaged in prosecutorial misconduct in violation of his constitutional rights. (ECF No. 1 at 3.) The court ordered petitioner to show cause why this action should not be dismissed based on petitioner's failure to first exhaust state court remedies; petitioner filed a response, respondent filed an opposition to the response, and petitioner filed a reply. (ECF Nos. 16, 18, 19.) In addition, petitioner filed a motion to amend, which is now fully briefed. (ECF Nos. 22, 23, 24.)
After careful review of the record and the parties' briefing, this court concludes that petitioner failed to exhaust his state court remedies; thus, the petition is dismissed without prejudice, and the motion to amend is denied.
II. Procedural History
A. On March 21, 2008, petitioner was charged with multiple counts of lewd acts upon his two daughters and a niece. (ECF No. 1 at 4.) Petitioner pled not guilty, and testified to his innocence at the jury trial. (Id.) On July 7, 2009, a jury found petitioner guilty of multiple counts of lewd acts upon children under California Penal Code § 288(a). (Reporter's Transcript ("RT") at 876.) On August 28, 2009, petitioner was sentenced to 60 years to life in state prison, plus 8 years. (RT at 981.) The sentencing judge confirmed that he had read petitioner's letter to probation that was "approximately 85 pages." (RT at 974-75.)
B. Petitioner, through counsel, appealed the conviction to the California Court of Appeal, Third Appellate District. According to the Court of Appeal opinion, petitioner raised 11 claims: (1) petitioner objected to the trial court closing the courtroom, claiming it violated his right to a public trial, and claimed defense counsel was ineffective based on his alleged failure to object to the closing of the courtroom; (2) the court violated his right to due process when it admitted evidence of his prior sex acts on the niece's aunt to show his propensity to commit sex offenses; (3) there was no clear and convincing evidence independently corroborating the facts supporting the conviction for molesting petitioner's niece; (4) the trial court erred by instructing the jury pursuant to CALCRIM No. 301, which permits a single witness's testimony to prove any fact, and pursuant to CALCRIM No. 1190, which permits a single witness's testimony to prove a sexual assault crime, and that the court erred in failing to advise the jury that these instructions did not apply to the niece's molestation charge, which required corroboration to toll the statute of limitations; (5) the trial court abused its discretion by refusing to sever the niece's charge from the daughters' charges; (6) the trial court erred by instructing the jury pursuant to CALCRIM No. 330, explaining how the jury should evaluate the testimony of a child who is age 10 or younger, because it violated petitioner's constitutional due process rights because there was no reciprocal instruction about petitioner's testimony; (7) CALCRIM No. 1110, which sets forth the elements of lewd acts on a child, is constitutionally deficient because it removes an essential element of the offense from the jury's consideration because the instruction states "[t]he touching need not be done in a lewd or sexual manner;" (8) the trial court erred in redacting portions of the juvenile court dependency records; (9) the prosecutor "engaged in repeated misconduct" by asking petitioner four improper questions: two regarding the veracity of a witness, another about a battered woman's shelter, and another about a court mediator; (10) the trial court abused its discretion in awarding $150, 000 to each of the daughters as restitution; and (11) the trial court erred by ordering petitioner to pay $460 for the cost of preparing the probation report. Sota, 2011 WL 720980, **1-14; ECF Nos. 16-3, 16-4 & 16-5.
C. On March 2, 2011, the Court of Appeal affirmed the judgment in a reasoned opinion. (ECF Nos. 16-3, 16-4 & 16-5.)
D. On April 6, 2011, petitioner, through appointed appellate counsel, filed a petition for review in the California Supreme Court. (ECF Nos. 16-1 at 2-19; 16-2.) The petition for review raised one claim: "Where the trial court proposes to exclude the public during the testimony of two prosecution witnesses, and the [petitioner] does not expressly agree thereto, does this act as a waiver or forfeiture of the right to public trial?" (ECF No. 16-1 at 8.) For ease of reference, this issue is subsequently referred to as petitioner's "public trial issue."
E. On May 11, 2011, the California Supreme Court denied the petition for review without comment. (ECF No. 16-1 at 1.)
F. Petitioner filed no collateral challenges in state court. (ECF No. 1 at 4.)
G. Petitioner, through counsel, filed the instant petition on May 8, 2012. (ECF No. 1.) Petitioner claims that (a) defense counsel was ineffective, in violation of the Sixth Amendment; (b) the trial court improperly breached mediation confidentiality, and (c) the prosecutor engaged in prosecutorial misconduct in violation of his constitutional rights. (ECF No. 1 at 3.)
III. Exhaustion of State Court Remedies
In the petition, counsel claims that "[a]ll state Administrative remedies were fully exhausted." (ECF No. 1 at 4.) In the answer, respondents do not waive exhaustion of state court remedies, but contend that it is ...