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United States District Court

Eastern District of California 

Steven Lynn,

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

vs. Order

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, seeking leave to file an amended petition and an order

to hold these proceedings in abeyance while he exhausts available

state remedies.

Petitioner was convicted of three robberies and of being a

felon in possession of a firearm March 22, 2002. The appellate

court affirmed June 20, 2003.

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Petitioner filed a petition for review in the California

Supreme Court. The court summarily denied review.

The trial and appellate courts summarily denied petitioner’s

applications for habeas corpus relief.

Petitioner filed an application for a writ of habeas corpus

in the California Supreme Court. The California Supreme Court

summarily denied habeas relief February 16, 2005, but it is

unclear what claims petitioner presented to that court. 

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

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

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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 petitioner was arrested

for being a felon in possession of a firearm violated due

process; (3) prohibiting petitioner from calling an important

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

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

the trial court’s refusal to direct the prosecution to 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 on considering the allegation petitioner

personally used a firearm violated Apprendi v. New Jersey, 530

U.S. 466 (2000). 

Respondents contend petitioner has not exhausted claims

four, five and six but the court cannot make such a finding

without knowing what claims petitioner presented to the

California Supreme Court in a habeas petition. 

Petitioner moves to hold this action in abeyance while he

exhausts available state remedies with respect to claims of

prosecutorial misconduct, ineffective assistance of counsel and

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unfair evidentiary rulings. The court will address the motion

when it is clear what claims the California Supreme Court

addressed in habeas proceedings.

Accordingly, within 30 days of the date this order is

signed, petitioner shall file and serve notice of the claims he

presented to the California Supreme Court on habeas. 

Dated: April 26, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

Case 2:04-cv-02126-ALA Document 12 Filed 04/28/05 Page 4 of 4