United States District Court, C.D. California
KENLY KIYA KATO, Magistrate Judge.
Proceedings: (In Chambers) Order Directing Petitioner to File Response Regarding Exhaustion
On September 30, 2014, Jim Katasse ("Petitioner"), a California state prisoner proceeding pro se, filed the instant Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254(d). (ECF Docket No. ("dkt.") 3). In the Petition, Petitioner challenges his 2012 probation revocation proceedings in connection with his underlying robbery conviction sustained in Los Angeles County Superior Court, Case No. SA063728. Id.
Construed liberally, Petitioner sets forth eleven claims for habeas relief in the Petition: (1) the trial court erred in denying Petitioner's discovery motion ("Claim One"); (2) Petitioner's right to a speedy trial was violated ("Claim Two"); (3) Petitioner's right to notice of the charges was violated ("Claim Three"); (4) there was insufficient evidence to support the prior conviction findings ("Claim Four"); (5) Petitioner's right to counsel was violated ("Claim Five"); (6) Petitioner's right to due process was violated when the trial court denied his sentencing motion ("Claim Six"); (7) Deputy Probation Officer Olivia Pena did not follow proper probation violation hearing procedures ("Claim Seven"); (8) the bench warrant issued by the trial court was not supported by good cause ("Claim Eight"); (9) Petitioner's due process rights were violated by the withholding of exculpatory material ("Claim Nine"); (10) the trial court and prosecution tampered with Petitioner's material witness ("Claim Ten"); and (11) the trial court was biased against Petitioner ("Claim Eleven"). Id. at 5-6; 10-11.
On January 8, 2015, Respondent filed a Motion to Dismiss ("Motion") contending Claims Two and Four through Eleven are unexhausted. (Dkt. 22). Petitioner has failed to file an Opposition to the Motion.
After considering Respondent's Motion, the Court makes the following determinations.
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 ).
For a petitioner in California state custody, this generally means 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.
"[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 court opinion in the case, that does so." Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). Furthermore, the mere citation of a relevant federal constitutional provision in relation to another claim does not satisfy the exhaustion requirement. Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) ("Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.").
The inclusion of both exhausted and unexhausted claims in a federal 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).
Here, Petitioner filed two habeas corpus petitions before the California Supreme Court (case numbers S214144 and S217733). See Lodged Documents ("Lodg.") 4 and 6. The Court's review of these documents establishes Petitioner presented (and hence, exhausted) Claims One and Three (trial court erred in denying Petitioner's discovery motion and Petitioner's right to notice of the charges was violated). However, Petitioner presented Claim Two (right to speedy trial) as an issue of state law. See Lodg. 4 at 3. Moreover, Claims Four through Eleven were not presented in either California Supreme Court petition.
Therefore, it appears from the record now before the Court that the instant Petition is subject to dismissal as a mixed petition. However, before deciding this matter, the Court will first give Petitioner an opportunity to address the exhaustion issue by electing any of the following five options:
If Petitioner contends he has in fact exhausted his state court remedies on Claims Two and Four through Eleven, he should clearly explain this in a response to this Order. Petitioner should attach to his response copies of any documents establishing that Claims Two and Four through Eleven are indeed exhausted. (Petitioner may also file a response, and include a notice that, if the court ...