United States District Court, Central District of California
ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS MIXED
Kenly Kiya Kato, United States Magistrate Judge.
On July 29, 2014, petitioner Ryan James Johnson filed a Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254. Petitioner presents six grounds for relief: (1) petitioner was denied due process when the trial court convicted him of murder without finding that he personally harbored malice aforethought; (2) the trial court denied petitioner's due process by failing to instruct the jury that it must find he personally harbored malice aforethought in order to secure a conviction of murder; (3) petitioner was denied due process when the trial court convicted him of murder without finding he acted willfully or with premeditation and deliberation; (4) petitioner was denied due process when the trial court failed to instruct the jury that it must find petitioner's co-conspirator, Baker-Riley, committed his provocative acts in furtherance of the common design to commit robbery in order to find petitioner guilty of murder; (5) trial counsel rendered ineffective assistance of counsel when he failed to move for and object to instructions on elements of the charged offense; and (6) trial counsel rendered ineffective assistance of counsel in failing to present a defense and move for instructions on a lesser included offense. Petition ("Pet.") at 5-6.
On October 27, 2014, respondent filed a Motion to Dismiss in which it argues the petition be dismissed without prejudice as a mixed petition unless petitioner deletes his unexhausted Ground Four. (ECF Docket No. 18). As discussed below, the Court concurs with respondent that Ground Four is unexhausted. As such, the petition is a “mixed” petition thus subject to dismissal. Accordingly, the court issues this Order to Show Cause by November 25, 2014 why the petition should not be dismissed as mixed.
The Exhaustion Requirement
A state prisoner must exhaust his or her state court remedies before a federal court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). To satisfy the exhaustion requirement, a habeas petitioner must fairly present his or her federal claims in the state courts in order to give the State the opportunity to pass upon and correct alleged violations of the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam). A habeas petitioner must give the state courts “one full opportunity” to decide a federal claim by carrying out “one complete round” of the state’s appellate process in order to properly exhaust a claim. O’Sullivan, 526 U.S. at 845.
For a petitioner in California state custody, this generally means that the petitioner must have fairly presented his or her claims in a petition to the California Supreme Court. See O’Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O’Sullivan to California). A claim has been fairly presented if the petitioner has both “adequately described the factual basis for [the] claim” and “identified the federal legal basis for [the] claim.” Gatlin, 189 F.3d at 888.
In order to satisfy the fair presentation requirement, the prisoner must describe in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See, e.g., Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) ("[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief."); Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) ("If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court."); Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) ("It is not enough that all the facts necessary to support the federal claim were before the state courts, . . . or that a somewhat similar state-law claim was made."); Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (holding that, for purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief, and rejecting the contention that the petitioner satisfied the exhaustion requirement by presenting the state courts only with the facts necessary to state a claim for relief); Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004) ("Even where a petitioner argues that an error deprived him of a "fair trial" or the "right to present a defense, " unless the petitioner clearly alerts the court that he is alleging a specific federal constitutional violation, the petitioner has not fairly presented the claim."); Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) ("[T]he petitioner must make the federal basis [of the claim] explicit either by citing federal law or the decisions of federal courts, even if the federal basis of a claim is 'self-evident, ' or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds."), as amended by, 247 F.3d 904 (9th Cir. 2001).
The inclusion of both exhausted and unexhausted claims in a habeas petition renders it mixed and subject to dismissal without prejudice. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (“In sum, because a total exhaustion rule promotes comity and does not unreasonably impair the prisoner’s right to relief, we hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.”).
In this case, petitioner argues in Ground Four that he was denied due process when the trial court failed to instruct the jury that it must find that co-conspirator Baker-Riley committed his provocative acts in furtherance of the common design to commit robbery in order to find petitioner guilty of murder. Pet. at 6. As stated in the Petition, petitioner raised this ground in his petition for review filed in the California Supreme Court. See Respondent's Lodged Document ("Lodg.") 17 at 22-24. However, petitioner failed to alert the California Supreme Court to the federal nature of this claim. Id. at 22-24. In fact, petitioner did not identify a single federal case or federal constitutional guarantee, nor did he discuss any federal legal theory or basis for his claim. Id. at 22-24. Moreover, petitioner's brief reference to "due process" was insufficient to alert the California Supreme Court to the federal nature of his claim. See Baldwin v. Reese, 541 U.S. 27, 32 (2004); see also Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (petitioner's "naked reference to 'due process''' in state petition was insufficient to raise a federal claim).
Therefore, it appears from the record now before the court that the present petition is subject to dismissal as a mixed petition. However, before deciding this matter, the Court will first give the petitioner an opportunity to respond.
The Ninth Circuit has stated that lower courts “‘have no obligation to act as counsel or paralegal to pro se litigants.’” Ford v. Pliler, 590 F.3d 782, 787 (9th Cir. 2009) (quoting Pliler v. Ford, 542 U.S. 225, 231, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004)). But the Ninth Circuit has also recognized that courts may provide pro se litigants with “accurate instruction” before dismissing a mixed petition. See Id . at 786 (“The district court gave [the petitioner] accurate instruction before dismissing his mixed habeas petitions without prejudice. Pliler does not allow us to require anything more.”). Accordingly, the court presents petitioner with the following options:
If Petitioner contends that he has in fact exhausted his state court remedies on ground four, he should clearly explain this in a response to this Order, which must be served and filed on or before November 25, 2014. Petitioner should attach to his response copies of any documents establishing that ground four is indeed exhausted. (Petitioner may also file a response, and include a notice that, if the court ...