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United States District Court

Eastern District of California 

Mauricio R. Munoz, Jr.,

Petitioner, No. Civ. S 04-1658 LKK PAN P

vs. Findings and Recommendations

John Marshall, Warden,

Respondent.

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

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

dismiss. Petitioner opposes.

Upon conviction of sex offenses, petitioner was placed on

probation, one condition of which was that he satisfactorily

complete a sex-offender counseling program.

April 11, 2003, petitioner’s probation was revoked for

failing to complete the program and he was sentenced to 12 years

in prison. Petitioner appealed and the appellate court affirmed.

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Petitioner sought review in the California Supreme Court. 

The court denied review.

Petitioner did not seek habeas corpus relief in state 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

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).

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Petitioner makes the following claims in the federal

petition: (1) revoking his probation was unfair because it was

based upon biased testimony of the sex-offender program director,

Dennis Bruce, who thought petitioner had not shown adequate

remorse and who accused petitioner’s family of lying to cover up

petitioner’s offenses; (2) revocation was unfair because Dennis

Bruce’s testimony amounted to retaliation against petitioner for

petitioner’s stating that for all he knew, Bruce could be a sex

offender; (3) the court unfairly disregarded evidence of Bruce’s

bias, including testimony that accusing petitioner’s family of

lying was a way of encouraging petitioner not to minimize his

offenses; (4) the sentencing court failed to consider that

petitioner sought therapy from a different counselor but was

refused because he did not have the court’s permission. 

In the California Supreme Court, petitioner claimed Bruce’s

testimony, based solely upon a desire to retaliate against

petitioner for suggesting Bruce could be a sex offender and

immediately following the development of a personal conflict

between the two, was insufficient to justify revoking

petitioner’s probation.

Petitioner did not in the California Supreme Court assert

Bruce’s accusations of dishonesty evidenced bias against him or

challenge the sentence imposed. Accordingly, the petition

contains exhausted and unexhausted claims. 

For these reasons, petitioner should be permitted 60 days to

file a motion to stay this action and hold it in abeyance

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while he exhausts his other claims. See Ford v. Hubbard, 330

F.3d 1086 (9th Cir. 2003); Calderon v. U.S. District Court for

N.D. Cal. (Taylor), 134 F.3d 981 (9th Cir. 1998). 

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: April 26, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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