(HC) Fegan v. Braselton, 1:14-cv-01022

Petitioner Steve Fegan is a California state prisoner serving life without parole plus fourteen years for murder with special circumstances and burglary (1995).
On June 30, 2014, he filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the Eastern District of California.
Petitioner seeks discovery under California Penal Code § 1054.9 to obtain evidence on chronic traumatic encephalopathy and post-concussive syndrome to challenge mental state at the offense.
Petitioner also alleges the state's failure to provide a second attorney in a capital case violated his Fifth, Sixth, and Fourteenth Amendment rights.
Petitioner names Braselton as respondent, but the court identifies that a proper state-custodian respondent must be named or substituted (Warden Scott Frauenheim proposed).
The court concludes grounds one and three do not present cognizable federal claims and are unexhausted; ground two is exhausted and constitutes the federal claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper respondent in the habeas petition	Braselton identified; proper respondent not named.	Braselton may be appropriate but requires identification; substitute Warden if necessary.	Petitioner must substitute a proper respondent (Braselton or Warden Frauenheim) under Rule 2(a).
State-law discovery claims vs. federal habeas claims; exhaustion	Discovery grounds should be treated as part of federal review.	Grounds one and three are not federal claims and are not exhausted.	Grounds one and three fail to state cognizable federal claims and remain unexhausted.
Mixed petition and procedure for exhaustion	Ground two is exhausted; proceed on that ground.	Court may dismiss unexhausted grounds or permit withdrawal.	Petition is mixed; court may allow withdrawal of unexhausted grounds or dismiss to permit exhaustion.

Rose v. Lundy, 455 U.S. 509 (1982) (exhaustion used to require dismissal of mixed petitions)
Duncan v. Henry, 513 U.S. 364 (1995) (requirement to present federal basis to state court for exhaustion)
Shumway v. Payne, 223 F.3d 982 (9th Cir. 2000) (fair presentation and exhaustion in the Ninth Circuit)
Johnson v. Zenon, 88 F.3d 828 (9th Cir. 1996) (federal basis must be explicit in state court)
Jarvis v. Nelson, 440 F.2d 13 (9th Cir. 1971) (dismissal for lack of jurisdiction if proper respondent not named)
Gatlin v. Madding, 189 F.3d 882 (9th Cir. 1999) (explicitly requiring federal claims to be identified as such in state court)
Lyons v. Crawford, 232 F.3d 666 (9th Cir. 2000) (mixed petitions and exhaustion doctrine discussions)
Kenney v. Tamayo-Reyes, 504 U.S. 1 (1992) (exhaustion and presenting federal claims in state court)