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United States District Court

Eastern District of California 

Steven Lynn,

Petitioner, No. Civ. S 04-2126 LKK PAN P

vs. Findings and Recommendations

A. K. Scribner,

Respondent.

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

of habeas corpus. See 28 U.S.C. § 2254. Respondent moves to

dismiss upon the ground the petition is mixed. Petitioner

opposes and moves for leave to file an amended petition and an

order to stay these proceedings while he exhausts available state

remedies.

March 22, 2002, petitioner was convicted of three counts of

robbery and of being a felon in possession of a firearm. The

appellate court affirmed June 20, 2003. July 11, 2003,

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petitioner filed a petition for review in the California Supreme

Court. September 10, 2003, that court summarily denied review.

September 3, 2003, petitioner filed a petition for a writ of

habeas corpus in the trial court. September 9, 2003, that court

summarily denied relief. November 19, 2003, petitioner filed an

application for a writ of habeas corpus in the appellate court. 

December 4, 2003, that court summarily denied relief. March 26,

2004, petitioner filed a petition for a writ of habeas corpus in

the California Supreme Court. March 30, 2004, petitioner filed

another petition for a writ of habeas corpus in the trial court

and April 13, 2004, that court summarily denied relief. 

March 30, 2004, petitioner filed an amended petition in the

California Supreme Court. The California Supreme Court summarily

denied relief February 16, 2005. 

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 the federal petition, petitioner claims: (1) use of

evidence petitioner previously committed an uncharged robbery

violated due process; (2) use of evidence that petitioner was

arrested for being a felon in possession of a firearm violated

due process; (3) prohibiting petitioner from calling a witness

violated the Sixth Amendment; (4) the conviction rests on

evidence obtained by an unconstitutional search and seizure; (5)

the trial court’s refusal to require the prosecution identify an

informant violated due process; (6) failure to instruct the jury

to view inculpatory out-of-court statement with caution denied

petitioner a fair trial; and (7) failure properly to instruct the

jury how to consider the allegation petitioner personally used a

firearm violated Apprendi v. New Jersey, 530 U.S. 466 (2000). 

Respondent asserts the California Supreme Court has not

ruled on petitioner’s fourth, fifth and sixth claims. 

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Petitioner’s March 30, 2004, amended petition in the

California Supreme Court included claims four, five and six and

that court denied relief February 16, 2005. I find petitioner

has exhausted available state remedies with respect to claims

four, five and six.

For these reasons, respondent’s February 18, 2005, motion to

dismiss should be denied, petitioner’s January 24, 2005, motion

to stay this action should be denied and respondent should be

directed to file and serve an answer to the petition within 30

days. 

Pursuant to the provisions of 28 U.S.C. § 636(b)(l), these

findings and recommendations are submitted to the United States

District Judge assigned to this case. Written objections may be

filed within 20 days of service of these findings and

recommendations. The document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The district

judge may accept, reject, or modify these findings and

recommendations in whole or in part. 

Dated: August 9, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

Case 2:04-cv-02126-ALA Document 15 Filed 08/09/05 Page 4 of 4