United States District Court, C.D. California
OPINION AND ORDER
ALICIA G. ROSENBERG, Magistrate Judge.
Petitioner was convicted by a jury of second degree robbery. Petitioner admitted a prior strike conviction and a prior prison term. Petitioner was sentenced to 10 years in state prison. On March 29, 2012, the California Court of Appeal affirmed the judgment. (Lodged Document (LD) 4.)
On June 12, 2012, the Los Angeles County Superior Court denied a state habeas petition. (LD 6.) On August 16, 2012, the California Court of Appeal denied a state habeas petition. (LD 8.) On December 12, 2012, the California Supreme Court denied a state habeas petition. (LD 10.) On November 13, 2013, the California Supreme Court denied a second state habeas petition. (LD 12.)
On December 5, 2013, Petitioner filed in this court a First Amended Petition for Writ of Habeas Corpus ("FAP"), in which he raised six grounds for relief: (1) a Batson claim; (2) a Brady claim; (3) improper use of his prior conviction; (4) lack of jurisdiction in the trial court; (5) errors in the abstract of judgment; and (6) sentencing error. (FAP at 5-9.).
Respondent filed a motion to dismiss the FAP on the ground that the entire petition is unexhausted. Petitioner filed an opposition.
Petitioner filed two habeas petitions before the California Supreme Court. (LD 9; LD 11.) The first habeas petition contained a claim for relief that is now Ground Six of the FAP. The California Supreme Court denied relief with a citation to In re Waltreus, 62 Cal. 2d 218, 225 (1965). (LD 10.)
In his second habeas petition filed with the California Supreme Court, Petitioner presented five claims for relief that correspond to Grounds One through Five of the FAP. (LD 11.) The California Supreme Court denied the second habeas petition with citations to People v. Duvall, 9 Cal.4th 464, 474 (1995), In re Clark, 5 Cal.4th 750, 767-69 (1993), and In re Swain, 34 Cal. 2d 300, 304 (1949). (LD 12.)
Federal habeas relief is not available unless the petitioner has exhausted the remedies available in the state courts. 28 U.S.C. § 2254(b)(1)(A).
A petitioner must "fairly present" his federal claim to the state's highest court. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). To satisfy this requirement, a petitioner must describe both the operative facts and the precise federal legal theory on which his claim is based to the California Supreme Court. See Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). A petitioner raises a federal issue by, for example, "citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim federal.'" Baldwin, 541 U.S. at 32.
"[O]rdinarily a state prisoner does not fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower ...