The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court in this habeas corpus action is Respondents' Motion to Dismiss Petitioner's Petition. (Docket No. 32.) All parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case (Docket Nos. 13, 14, & 15). Having reviewed the pending motions, as well as the record in this case, the following Order is entered.
RESPONDENTS' MOTION TO DISMISS
Respondents request dismissal of Petitioner's claims on the basis of procedural default. Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus when "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." In such case, the Court construes the facts in a light most favorable to the petitioner.When a court is considering a motion to dismiss, it may take judicial notice of facts outside the pleadings. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1281 (9th Cir. 1986).*fn1 A court may look beyond the complaint to matters of public record, and doing so does not convert a motion for summary dismissal into a motion for summary judgment. Id. Accordingly, the Court shall take judicial notice of those portions of the state court record lodged by the parties and consider them.
A federal habeas petitioner must first exhaust his state court remedies as to all of his constitutional claims before presenting them to the federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Unless a petitioner has exhausted his state court remedies relative to a particular claim, a federal district court may deny the claim on its merits, but it cannot otherwise grant relief on unexhausted claims. 28 U.S.C. § 2254(b). The petitioner can satisfy the exhaustion requirement by showing that (1) he has "fairly presented" his federal claim to the highest state court with jurisdiction to consider it, or (2) that he did not present the claim to the highest state court, but no state court remedy is available when he arrives in federal court (improper exhaustion). Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted).
To exhaust a habeas claim properly, a habeas petitioner must "invok[e] one complete round of the State's established appellate review process," O'Sullivan v. Boerckel, 526 U.S. at 845, giving the state courts a full and fair opportunity to correct the alleged constitutional error at each level of appellate review. See Baldwin v. Reese, 541 U.S. 27, 29 (2004). Improperly exhausted claims are deemed "procedurally defaulted." Procedurally defaulted claims include those within the following circumstances: (1) when a petitioner has completely failed to raise a particular claim before the Idaho courts; (2) when a petitioner has raised a claim, but has failed to fully and fairly present it as a federal claim to the Idaho courts, as discussed directly above; or (3) when the Idaho state courts have rejected a claim on an independent and adequate state procedural ground.*fn2 Procedurally defaulted claims are subject to dismissal with prejudice.
When the United States federal district court performs a review of a habeas corpus petition, a petition from a state prisoner "who is proceeding pro se may be viewed more leniently for exhaustion purposes than a petition drafted by counsel." Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005).
In 1994, Petitioner was convicted in Idaho state court of lewd conduct with a minor under sixteen years of age. He was sentenced to a term of ten years fixed, with life indeterminate. (State's Lodging A-1, pp. 90-91.) Petitioner's conviction and sentence were affirmed by the Supreme Court of Idaho on October 26, 1998. (State's Lodging B-13.)
On December 22, 1998, Petitioner filed a federal habeas corpus petition in this district court challenging his conviction and sentence. (See Muraco v. Foster, Case No. CV-98-512-SEJL, Docket No. 5.) Petitioner's case was eventually dismissed, and his certificate of appealability was denied by the district court and the Ninth Circuit Court of Appeals. (Id., Docket Nos. 27, 40, & 41.)
Petitioner alleges he is a Canadian citizen and the facts underlying the current federal Habeas Corpus Petition arise from the denial of parole by the Idaho Commission of Pardons and Parole (ICPP). Prior to the ICPP's consideration of Petitioner for release on parole, the Immigration and Naturalization Service ("INS") had issued a detainer against him, which meant that he was to be deported to Canada immediately upon parole. However, the INS later cancelled the detainer because it determined Petitioner had dual United States-Canada citizenship, and it is unlawful for the United States to deport one of its own citizens. The ICPP was unwilling to parole Petitioner to the United States; therefore, Petitioner's tentative parole approval was voided.
On December 10, 2004, Petitioner filed a state habeas corpus petition asserting that the voiding of his parole violated state law and his constitutional rights. (State's Lodging F-1, pp. 1-7.) The state district court dismissed the petition, and the Idaho Court of Appeals affirmed dismissal. (State's Lodgings F-1, pp. 54-65 & G-4.) The Supreme Court of Idaho denied the petition for review. (State's Lodging G-7.)
The instant Petition for Writ of Habeas Corpus was filed by Petitioner in this Court on March 28, 2007, with a Supplemental Petition filed on August 13, 2009. (Docket Nos. 1 & 2.) In the Initial Review Order, it was determined that Plaintiff could proceed with only the following claims: Claim1, denial of equal protection because he was allegedly denied parole on the basis of national origin; Claim 2, denial of equal protection because he was allegedly denied parole based on an inability to be deported to Canada, which placed an unusual hardship on him compared to other inmates; Claim 3, an ex post facto violation because the requirement of deportation is new criteria with which he cannot comply; Claim 8, that the State has retaliated against him for exercising his right to bring grievances to the courts; Claim 10, "Respondents cannot use ...