Facts

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus. The original petition and first amended petition outlined 4 claims: actual innocence, ineffective assistance of counsel in failing to present an arson expert, ineffective assistance of counsel in failing to present additional witnesses in Petitioner’s defense; and jury misconduct. The amended petition added 3 more claims: ineffective assistance of counsel in failing to cross examine the prosecution’s fire experts using NFPA 921, convictions were based on unreliable expert testimony; and cumulative error.

Statement of Relevant Law

The court must dismiss a petition for writ of habeas corpus if it plainly appears from the petition that the petitioner is not entitled to relief.

A petitioner in state custody must first exhaust state judicial remedies. Petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. The petitioner must have also told the state court that it is raising a federal constitutional issue. When none of the petitioner’s highest claims have been presented to the highest court, the petition must be dismissed. The court cannot entertain a petition that is “mixed.”

Analysis

This petition is a “mixed” petition, containing exhausted and unexhausted claims. The court examined the three new claims to determine if they were adequately exhausted.

Claim 4 – Ineffective Assistance of Counsel for failing to cross-examine the prosecution fire experts regarding relevant scientific standards.  Petitioner brought two other claims for ineffective assistance of counsel before the Supreme Court of California, but did not raise this particular issue. Claims may be considered exhausted if they are sufficiently related or intertwined with a claim presented to the state courts. Wooten, 540 F.3d at 1025. However, this claim fails.

Claim 6 – Claims were based on fundamentally unreliable expert testimony and evidence in violation of his constitutional rights. Neither factual nor legal claim was presented to the state court.

Claim 7 – Cumulative Error. Petitioner’s claim for cumulative error must be clearly identified in the petitioner’s brief before a state court to be exhausted. Here, Petitioner’s claim for cumulative error was properly outlined in this state brief, but it is unclear if Petitioner intends for this claim to encompass all claims or just those properly raised at the state level. This court ordered Petitioner to show cause why the claim should be considered exhausted.

Order

Petitioner must inform the court within 7 days of the date of service of this order whether claims Four, Six, and Seven have been properly presented to the California Supreme Court.

Court’s Analysis of 921

The Petitioner’s Claim Four stated that defense counsel failed to cross-examine the prosecution’s fire experts regarding relevant scientific methodology set forth in National Fire Protection Association (NFPA) Standard 921. There was no analysis and this did not have any bearing on the outcome of the case, as there was a procedural error (Petitioner has not sufficiently exhausted this claim in the state court before petitioning for a federal write of habeaus corpus).