1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DONALD ROY MILLER,

Petitioner, No. CIV S-04-2446 DFL KJM P

vs.

A.K. SCRIBNER, Warden, 

Respondent. FINDINGS AND RECOMMENDATIONS

 /

Plaintiff is a state prison inmate proceeding pro se with a petition for a writ of

habeas corpus under 28 U.S.C. § 2254. He challenges his Placer County convictions for

possession of methamphetamine, maintaining a place for the sale or possession of

methamphetamine, failure to register as a drug offender, possession of less than 28.5 grams of

marijuana, furnishing methamphetamine, marijuana and alcohol to a minor, and soliciting a

minor to use or sell methamphetamine. His habeas petition raises ten grounds in support of his

petition: (1) the court improperly defined the word “furnishing” in response to a question from

the jury; (2) the court did not instruct properly on the essential element of simple possession;

(3) several of the counts are not supported by sufficient evidence; (4) the trial court should have

given accomplice instructions sua sponte; (5) the court admitted irrelevant and prejudicial

evidence; (6) the court erred in failing to instruct on the lesser included offense of contributing to

Case 2:04-cv-02446-JKS Document 22 Filed 02/27/06 Page 1 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 A petition may be denied on the merits without exhaustion of state court remedies. 28

U.S.C. § 2254(b)(2). 

2

the delinquency of a minor; (7) a sentencing enhancement based on the age of the offender

violates equal protection (8) sentences for three enhancements were imposed improperly; (9)

sentences for the marijuana possession charges were improperly imposed; and (10) improper

multiple sentences were imposed. 

Respondent has filed a motion to dismiss, arguing that the petition is “mixed”

because it contains exhausted and unexhausted claims. He has lodged a number of documents

with the court in support of the motion. 

The exhaustion of state court remedies is a prerequisite to the granting of a

petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must

be waived explicitly by respondents’ counsel. 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion,

thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by

providing the highest state court with a full and fair opportunity to consider all claims before

presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). 

The state court has had an opportunity to rule on the merits when the petitioner

has fairly presented the claim to that court. The fair presentation requirement is met where the

petitioner has described the operative facts and legal theory on which his claim is based. Picard,

404 U.S. at 277-78. Generally, it is “not enough that all the facts necessary to support the federal

/////

/////

/////

/////

/////

/////

Case 2:04-cv-02446-JKS Document 22 Filed 02/27/06 Page 2 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

claim were before the state courts . . . or that a somewhat similar state-law claim was made.” 

Anderson v. Harless, 459 U.S. 4, 6 (1982). Instead, 

[i]f state courts are to be given the opportunity to correct alleged

violations of prisoners’ federal rights, they must surely be alerted

to the fact that the prisoners are asserting claims under the United

States Constitution. If a habeas petitioner wishes to claim that an

evidentiary ruling at a state court trial denied him the due process

of law guaranteed by the Fourteenth Amendment, he must say so,

not only in federal court, but in state court.

Duncan v. Henry, 513 U.S. 364, 365 (1995). Accordingly, “a claim for relief in habeas corpus

must include reference to a specific federal constitutional guarantee, as well as a statement of the

facts which entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996). 

The United States Supreme Court has held that a federal district court may not entertain a

petition for habeas corpus unless the petitioner has exhausted state remedies with respect to each

of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). A mixed petition containing both

exhausted and unexhausted claims must be dismissed.

In the petition for review filed in the California Supreme Court, petitioner raised

the following grounds: (1) did the trial court properly define the term “furnish” in its instructions

to the jury; (2) does the jury instruction on simple possession of drugs improperly omit a

requirement that the drugs must be in a form sufficient to be used as drugs; (3) is a minor who

aids and abets an adult in furnishing drugs to other minors an accomplice; (4) do sentencing

enhancements based on age violate the equal protection clause; and (5) were convictions of

several of the counts supported by substantial evidence? Lodged Document (Doc.) 5 (Petition

for Review). These grounds correspond to grounds one through four and ground seven of the

federal petition. Accordingly, grounds five and eight through ten of the federal petition were not

presented to the California Supreme Court and are not exhausted.

Respondent argues that grounds two and four are not exhausted as well, for

although the issues were presented to the California Supreme Court, they were presented on state,

not federal grounds. 

Case 2:04-cv-02446-JKS Document 22 Filed 02/27/06 Page 3 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 2

 People v. Leal, 64 Cal.2d 504 (1966) and People v. Rubacalba, 6 Cal.4th 62 (1993). 

4

In ground two of the petition for review, petitioner argued that 

[t]he issue for review, therefore, is whether the “useable in form”

element of the offense as described in Leal and Rubacalba2 is

limited only to substances chemically transformed to be unusable,

or whether it applies to any substance useless in form, such as 

scattered residue that a criminalist reassembles into usable

quantity.

Doc. 5 at 11-12. He does not cite any federal case law or constitutional provisions in his

argument. This claim thus is not exhausted.

In ground four of the petition for review, petitioner argued that California Health

and Safety Code § 11380.1, which imposes a sentencing enhancement based on the difference in

age between a defendant and the person to whom he furnished drugs, 

violates principles of equal protection by making the age of the

perpetrator an element of the criminal offense. In so doing, the

penal statue draws an irrational distinction between youthful and

older adult offenders based on age.

Doc. 5 at 14. Petitioner does not cite the Fourteenth Amendment to the United States

Constitution or any federal cases in support of his argument. 

Although a petitioner need not cite "book and verse on the federal constitution,"

Picard, 404 U.S. at 278 (quotation marks and citations omitted), he cannot exhaust by “general

appeals to broad constitutional principles, such as . . .equal protection. . . .” Hiivala v. Wood. 

195 F.3d 1098, 1106 (9th Cir. 1999). Mentioning “equal protection” once is insufficient to

exhaust state remedies. Fields v. Waddington, 401 F.3d 1018, 1022 (9th Cir.), cert. denied, 

U.S. , 126 S.Ct. 738 (2005). 

The only case citation in petitioner’s argument on ground four is to a California

case, which analyzes a state statute to determine whether it violates “equal protection,” but does

not rely on the federal constitution or federal case law in its analysis. See People v. Gonzalez, 81

Case 2:04-cv-02446-JKS Document 22 Filed 02/27/06 Page 4 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

Cal.App.3d 274 (1978). This citation is not sufficient to exhaust state remedies. Compare

Peterson v. Lampert, 319 F.3d 1153, 1158-59 (9th Cir. 2003) (citation to state case that analyzes

federal constitutional issue is sufficient to exhaust). 

Accordingly, only claims one, three and seven of the state petition have been

exhausted. 

Generally, a mixed petition is subject to dismissal, with the petitioner given a

chance to file an amended petition containing only exhausted claims. Rose, 455 U.S. at 522. 

However, in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 1535 (2005), the Supreme Court

recognized the district court’s authority to stay a mixed petition if it finds good cause for

petitioner’s failure to exhaust earlier and merit to the claims petitioner is seeking to exhaust. 

Petitioner has not made such a request or showing. 

Accordingly, IT IS HEREBY RECOMMENDED that respondent’s motion to

dismiss be granted and leave be given for petitioner to file an amended petition containing only

exhausted claims. Any amended petition should be filed within thirty days of adoption of these

Findings and Recommendations, if they are adopted. 

These findings and recommendations will be submitted to the United States

District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within

twenty days after being served with these findings and recommendations, any party may file

written objections with the court and serve a copy on all parties. Such a document should be

captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the

/////

/////

/////

/////

/////

/////

Case 2:04-cv-02446-JKS Document 22 Filed 02/27/06 Page 5 of 6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

6

objections shall be served and filed within five days after service of the objections. The parties

are advised that failure to file objections within the specified time may waive the right to appeal

the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: February 27, 2006.

______________________________________

UNITED STATES MAGISTRATE JUDGE

2/mill2446.157

Case 2:04-cv-02446-JKS Document 22 Filed 02/27/06 Page 6 of 6