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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

11 12 Case No. 5:25-cv-01859-MCS-PD 13 ENRIQUE V. ALVAREZ,

ORDER TO SHOW CAUSE RE:

14 Petitioner, DISMISSAL OF PETITION 15 v. 16 ROBERTO A. ARIAS, Warden, 17 Respondent. 18

19 20 21 On August 19, 2024, Petitioner Enrique V. Alvarez, proceeding pro se, 22 filed a Petition for Writ of Habeas Corpus by a Person in State Custody 23 pursuant to 28 U.S.C. § 2254.1 The Court issues this Order to Show Cause 24 directed to Petitioner because the face of the Petition suggests that it is 25 subject to dismissal as partially unexhausted. 26 27

28 1 Petitioner originally filed the Petition in the Southern District of California, 1 I. Procedural History and Petitioner’s Contentions 2 A Riverside County Superior Court jury convicted Petitioner of second- 3 degree murder and found that he committed the crime for the benefit of a 4 criminal street gang and personally discharged a firearm causing great bodily 5 injury or death. [See Dkt. No. 1 at 2-3]; People v. Alvarez, No. E072886, 2020 6 WL 7090844, at *1 (Cal. Ct. App. Dec. 4, 2020). He was sentenced to 40 years 7 to life in state prison. See Alvarez, 2020 WL 709084, at *1. 8 Petitioner appealed, alleging, among other things, that his trial counsel 9 was constitutionally ineffective by failing to move to suppress his pretrial 10 statements as obtained in violation of Miranda v. Arizona, 384 U.S. 436 11 (1966), and that the cumulative effect of that and various other trial errors 12 deprived him of his right to a fair trial. See Alvarez, 2020 WL 709084, at *1. 13 On December 4, 2020, the California Court of Appeal affirmed the judgment. 14 See id. at *13. On March 10, 2021, the California Supreme Court granted 15 Petitioner’s petition for review, deferring consideration and disposition until it 16 decided a related issue in People v. Lemcke, 11 Cal. 5th 644 (2021), and on 17 August 25, transferred the matter to the California Court of Appeal with 18 directions to vacate its prior decision and reconsider in light of Lemcke. See 19 Cal. App. Cts. Case Info. http:// appellatecases.courtinfo.ca.gov/ (search for 20 case no. S266446 in Cal. Sup. Ct.) (last visited on Aug. 13, 2025). On 21 November 21, 2021, the California Court of Appeal reached the same 22 disposition it had in its earlier decision. See People v. Alvarez, No. E072886, 23 2021 WL 5068415, at *13 (Cal. Ct. App. Nov. 21, 2021). 24 Petitioner then filed a petition for rehearing, arguing the jury’s finding 25 that the murder was committed to benefit a criminal street gang was invalid 26 under a newly enacted statute. See People v. Alvarez, No. E072886, 2022 WL 27 122375, at *2 (Cal. Ct. App. Jan. 13, 2022). On January 13, 2022, the 28 California Court of Appeal reversed the jury’s finding on the gang allegation 1 and remanded to the trial court to provide the prosecution the opportunity to 2 retry the gang allegation or, if the prosecution declined to do so, impose a new 3 sentence without the gang enhancement.2 See id. at *12. In all other 4 respects, the California Court of Appeal affirmed Petitioner’s judgment. See 5 id. 6 On February 22, 2022, Petitioner filed a petition for review in the 7 California Supreme Court. See Cal. App. Cts. Case Info. http:// 8 appellatecases.courtinfo.ca.gov/ (search for case no. S273248 in Cal. Sup. Ct., 9 Dkt. No. 1) (last visited on Aug. 13, 2025). The petition for review presented 10 only one question: “Was trial counsel prejudicially ineffective on the face of 11 the record when he failed to pursue a motion to exclude [Petitioner’s] 12 statement taken in violation of his Miranda rights because trial counsel 13 erroneously concluded that [Petitioner] had waived his Miranda rights?” See 14 id. On March 30, 2022, the California Supreme Court denied the petition for 15 review. See id., Dkt. No. 4. 16 On March 4, 2022, while his petition for review was still pending, 17 Petitioner filed a counseled habeas petition in the California Supreme Court.3 18 See id. (search for case no. S273423 in Cal. Sup. Ct., Dkt. No. 1). The habeas 19 petition raised no new claims but rather “supplement[ed] the question 20 presented [in Petitioner’s petition for review] to present trial counsel’s 21 declaration that the reason for failing to pursue a motion to suppress was 22 because he believed his client had implicitly waived his Miranda rights, as he 23 stated on the record.” See id. On June 22, 2022, the California Supreme 24

25 2 The superior court evidently struck the gang allegation, see Riverside Super. Ct. Case Info., https://epublic-access.riverside.courts.ca.gov/ 26 public-portal/?q=node/385/4163391 (search case no. INF1501680-2) (last visited Aug. 13, 2025), although the Court cannot determine when it did so. 27

28 3 In his Petition, Petitioner incorrectly states that he did not file any state- 1 Court denied the habeas petition. See id., Dkt. No. 2. Petitioner has not filed 2 any other habeas petitions in the California Supreme Court. See id. (search 3 for “Enrique” with “Alvarez,” yielding no relevant results). 4 On August 19, 2024, Petitioner filed the instant Petition. The Petition 5 states the following three grounds for relief: 6 1. The trial court violated due process by allowing the prosecutor to 7 introduce Petitioner’s pretrial statements because they were obtained in 8 violation of Miranda. 9 2. Trial counsel provided ineffective assistance by failing to move to 10 suppress Petitioner’s pretrial statements as obtained in violation of Miranda. 11 3. The cumulative effect of the errors alleged in Grounds One and 12 Two, coupled with the trial court’s instruction concerning how to evaluate 13 eyewitness-identification testimony, requires reversal of Petitioner’s 14 conviction.4 15 [Dkt. No. 1 at 7-11.] 16 II. Discussion 17 A. Duty to Screen 18 Rule 4 of the Rules Governing § 2254 Cases requires the Court to 19 conduct a preliminary review of the Petition. Pursuant to Rule 4, the Court 20 must summarily dismiss a petition “[i]f it plainly appears from the face of the 21 petition . . . that the petitioner is not entitled to relief in the district court.” 22 Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 23 F.2d 490 (9th Cir. 1990). As explained below, a review of the Petition 24 suggests that it is subject to dismissal as partially unexhausted. 25 4 On direct review, Petitioner raised a direct challenge to the trial court’s 26 instruction concerning how to evaluate eyewitness-identification testimony, and the California Court of Appeal denied it in a reasoned decision. See Alverez, 2022 WL 27 122375, at *10-11. In this action, however, he does not assert it as an independent 28 claim but instead only as part of his cumulative-error claim. [See Dkt. No. 1 at 10- 1 2 B. Exhaustion 3 Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a 4 petitioner has exhausted the remedies available in state court. Exhaustion 5 requires that the petitioner’s contentions were fairly presented to the state 6 courts, Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), and disposed of 7 on the merits by the highest court of the state, Greene v. Lambert, 288 F.3d 8 1081, 1086 (9th Cir. 2002). As a matter of comity, a federal court will not 9 entertain a habeas petition unless the petitioner has exhausted the available 10 state judicial remedies on every ground presented in it. See Rose v. Lundy, 11 455 U.S. 509, 518-19 (1982). 12 Here the Petition appears to be partially unexhausted. Although 13 Petitioner asserted in his petition for review that counsel was ineffective by 14 failing to move to suppress his pretrial statements under Miranda, see 15 Alvarez, 2022 WL 122375, at *8-10, he did not assert an independent Miranda 16 claim that the trial court’s admission of his pretrial statements violated due 17 process, as he does in Ground One. [See Dkt. No. 1 at 7-10.] And in 18 addressing Petitioner’s ineffective-assistance claim on direct review, the 19 California Court of Appeal never analyzed whether a Miranda violation 20 actually occurred. Instead, it “assume[d] for the sake of argument” that one 21 did only to find that counsel may have opted against moving to suppress 22 Petitioner’s pretrial statements for strategic reasons. Alvarez, 2022 WL 23 122375, at *9-10. 24 Petitioner likewise did not assert the Petition’s due process challenge to 25 the admission of his pretrial statements in the counseled habeas petition he 26 filed in the California Supreme Court. Rather, that petition merely 27 “supplement[ed]” the ineffective-assistance claim he raised in his petition for 28 review by presenting trial counsel’s declaration concerning his decision not to 1 move to suppress Petitioner’s pretrial statements. Cal. App. Cts. Case Info. 2 http:// appellatecases.courtinfo.ca.gov/ (search for case no. S273423 in Cal. 3 Sup. Ct., Dkt. No. 1) (last visited on Aug. 13, 2025). And indeed, Petitioner’s 4 habeas counsel would have understood the futility of raising a due process 5 challenge to the admission of Petitioner’s pretrial statements for the first time 6 on habeas because he did not object to their admission at trial or raise the 7 claim on direct review. See People v. Alvarez, 14 Cal. 4th 155, 186 (1996) 8 (California requires defendant to raise timely and specific objection at trial to 9 preserve constitutional claim on appeal); Ex parte Dixon, 41 Cal. 2d 756, 759 10 (1953) (“[H]abeas corpus cannot serve as a substitute for an appeal, and, in 11 the absence of special circumstances constituting an excuse for failure to 12 employ that remedy, the writ will not lie where the claimed errors could have 13 been, but were not, raised upon a timely appeal from a judgment of 14 conviction.”).5 As such, it does not appear that any state court has addressed 15 the constitutional claim asserted in Ground One. 16 Petitioner’s cumulative-error claim in Ground Three also appears to be 17 unexhausted. Petitioner did allege a cumulative-error claim on direct review. 18 See Alvarez, 2022 WL 122375, at *11. But that claim was not the same one he 19 alleges here, because it involved multiple alleged errors that he does not raise 20 in the Petition. See id. at *3-11 (reflecting that Petitioner’s cumulative-error 21 claim on direct review was based on, among other things, exclusion of expert 22 testimony and admission of allegedly faulty eyewitness testimony). More 23 importantly, his cumulative-error claim on direct review did not include an 24 independent due process challenge to the trial court’s admission of his pretrial 25 statements, whereas his cumulative-error claim in Ground Three does. [See 26 Dkt. No. 1 at 11.] 27

28 5 The Court expresses no view at this time whether Ground One is 1 The Petition must therefore be dismissed unless Petitioner takes steps 2 to cure the problem. See Rose, 455 U.S. at 522. 3 III. Conclusion 4 For the foregoing reasons, the Court ORDERS Petitioner, by no later 5 than September 19, 2025, to either (a) show that he has exhausted his 6 state-court remedies as to the Petition’s Grounds One and Three6 or (b) 7 concede that Grounds One and Three are unexhausted and select one of the 8 following options: 9 (1) File a motion to stay and abey his Petition under Rhines v. Weber, 10 544 U.S. 269 (2005), if he believes he can make the required showings. To 11 obtain a stay under Rhines of his federal petition while he exhausts his state 12 remedies, a petitioner must comply with the following requirements: (a) he 13 must show good cause for his failure to earlier exhaust the claim in state 14 court; (b) the unexhausted claim must not be “plainly meritless”; and (c) he 15 must not have engaged in “abusive litigation tactics or intentional delay.” 544 16 U.S. at 277-78; 17 (2) File a motion to stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 18 2003) (as amended), overruling on other grounds recognized by Robbins v. 19 Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). To obtain a stay under Kelly, the 20 petitioner must (a) voluntarily dismiss Grounds One and Three; (b) ask this 21 court to stay the then fully exhausted Petition; and (c) return to state court to 22 attempt to exhaust the unexhausted claim while the federal Petition is held in 23 abeyance – with the understanding that he will be allowed to amend any 24 newly exhausted claim back into the Petition only if it is timely under AEDPA 25 or “relates back” to the original exhausted claims, see Mayle v. Felix, 545 U.S. 26 644, 664 (2005);

27 6 If Petitioner maintains that Grounds One and Three are exhausted, he must 28 attach copies of any state-court habeas petitions he has filed that include Grounds 1 (3) File an amended petition that contains only the Petition’s 2 || exhausted claim (Ground Two). The Court hereby notifies Petitioner that if 3 || he chooses this option — to dismiss the Petition’s unexhausted claims without 4 | seeking a stay and proceed only with his exhausted claim — then his 5 || unexhausted claims may later be time-barred under 28 U.S.C. § 2244(d)(1), 6 || and any subsequent § 2254 petition containing the claims may be barred as 7 || an unauthorized second or successive petition; or 8 (4) File a request that the Petition be dismissed without prejudice 9 || under Federal Rule of Civil Procedure 41(a)(1), with the understanding that 10 || any later petition may be time barred under § 2244(d)(1). 11 If Petitioner does not respond to this Order by September 19, 12 || 2025, the Court will recommend that that the Petition be dismissed 13 | without prejudice as partially unexhausted. 14 15 IT IS SO ORDERED. 16 . 17 || DATED: August 14, 2025 A) Lite Lona 18 PATRICIA DONAHUE 9 UNITED STATES MAGISTRATE JUDGE

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