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United States District Court

Eastern District of California 

Christopher James,

Petitioner, No. Civ. S 04-1574 FCD PAN P

vs. Order

J. Solis, Warden,

Respondent.

-oOoPetitioner, a state prisoner without counsel, seeks a writ

of habeas corpus. See 28 U.S.C. § 2254. Respondents move to

dismiss upon the ground the petition contains unexhausted claims.

Petitioner concedes the petition is mixed but moves to file an

amended petition and to stay these proceedings while he exhausts

available state remedies. 

Petitioner was convicted February 3, 2001. The appellate

court affirmed. 

Petitioner filed a petition for review in the California 

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Supreme Court claiming the trial court violated petitioner’s

right to a jury trial by increasing petitioner’s sentence based

upon a finding petitioner personally used a firearm without

submitting the allegation to the jury and the trial court’s

restrictions on petitioner’s cross-examination of a prosecution

witness violated petitioner’s right of confrontation. The court

denied the petition. 

Petitioner sought habeas corpus relief in the California

Supreme Court upon the grounds: (1) the prosecutor vouched for

witnesses in closing argument in violation of the Due Process

Clause of the Fourteenth Amendment; (2) trial counsel was

ineffective by failing to object to the prosecutor’s comments in

closing argument in violation of the Sixth Amendment. The court

denied relief. 

A district court may not grant a petition for a writ of

habeas corpus unless “the applicant has exhausted the remedies

available in the courts of the State,” or unless there is no

State corrective process or “circumstances exist that render such

process ineffective to protect the rights of the applicant.” 28

U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion

requirement by presenting the “substance of his federal habeas

corpus claim” to the state courts. Picard v. Connor, 404 U.S.

270, 278 (1971) (no exhaustion where the petitioner presented

operative facts but not legal theory to state courts); see also

Duncan v. Henry, 513 U.S. 364, 365 (1995)(to exhaust a claim, a

state court “must surely be alerted to the fact that the

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prisoners are asserting claims under the United States

Constitution”). A claim is unexhausted if any state remedy is

available. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999)

(petitioner must seek discretionary review from state court of

last resort); Roberts v. Arave, 874 F.2d 528, 529 (9th Cir.

1988)(no exhaustion where state supreme court referred

petitioner’s appeal of trial court’s denial of post-conviction

relief to lower appellate court and petitioner failed to appeal

lower court’s disposition of that appeal to state supreme court).

A mixed petition, viz., one containing exhausted and unexhausted

claims, must be dismissed. Rose v. Lundy, 455 U.S. 509 (1982).

In his federal petition, petitioner makes the following

claims: (1) the trial court violated petitioner’s right to a jury

trial by increasing his sentence based upon a finding petitioner

personally used a firearm even though the allegation was not

submitted to the jury; (2) the trial court’s restriction of

petitioner’s cross-examination of a prosecution witness violated

petitioner’s right of confrontation; (3) during deliberations,

the trial court permitted the prosecution to enter into evidence

the taped statement and transcript thereof of a prosecution

witness so the jury could consider it in deliberations; (4) the

prosecutor’s comments during closing argument violated the Due

Process Clause of the Fourteenth Amendment; and, (5) trial

counsel was ineffective for failing to object to the prosecutor’s

improper comments in violation of the Sixth Amendment.

The parties agree petitioner failed to present his third

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claim to the California Supreme Court. The petition contains

both exhausted and unexhausted claims.

Before the court can determine whether to grant petitioner’s

request to stay this action while petitioner exhausts his third

claim, the court must determine whether petitioner had good cause

for his failure to exhaust, whether the unexhausted claim is

potentially meritorious and whether petitioner engaged in

intentionally dilatory litigation tactics. Rhines v. Weber, 125

S.Ct. 1528 (2005).

Accordingly, within 30 days from the date this order is

signed, petitioner shall file and serve an explanation of why

this court should stay this action while he exhausts his third

claim. Respondent has ten days to file and serve an opposition

or notice of non-opposition. Petitioner’s failure to comply

with this order will result in the court permitting petitioner to

delete the unexhausted claim and to proceed on the other claims.

So ordered.

Dated: June 2, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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