Case 5:22-cv-01893-RSWL-PD Document 7 Filed 11/30/22 Page 1 of 6 Page ID #:43

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 MOSES ESTRADA, Case No. 5:22-cv-1893-RSWL-PD 12 Petitioner, ORDER TO SHOW CAUSE RE: 13

DISMISSAL OF PETITION

v. 14

PEOPLE OF RIVERSIDE

15

CALIFORNIA,

16 Respondent. 17

18 19 On October 24, 2022, Petitioner Moses Estrada, a state prisoner in the 20 custody of the California Department of Corrections, filed a Petition for Writ 21 of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. 22 The Court issues this Order to Show Cause directed to Petitioner because the 23 Petition sets forth no specific grounds for relief and Petitioner concedes that 24 any ground for relief he seeks to raise is unexhausted. 25

I. Procedural History and Petitioner’s Contentions

26 In March 2019, a San Bernardino County Superior Court jury convicted 27 Petitioner of seven counts of lewd or lascivious conduct against two victims 28 under the age of 14, in violation of California Penal Code section 288(a). The Case 5:22-cv-01893-RSWL-PD Document 7 Filed 11/30/22 Page 2 of 6 Page ID #:44

1 jury also found true the allegation that he committed the offenses against 2 multiple victims pursuant to California Penal Code section 667.61. He was 3 sentenced to 150 years to life in state prison. [See Dkt. No. 1 at 2.] 4 Petitioner appealed, alleging three claims: (1) there was insufficient 5 evidence to support one of the lewd or lascivious counts; (2) the trial court 6 committed instructional error; and (3) his sentence was cruel and unusual. 7 See People v. Estrada, No. E073286, 2021 WL 1904544, at *1 (Cal. Ct. App. 8 May 12, 2021). He also asked the court of appeal to review a sealed transcript 9 from the trial proceedings to determine whether the trial court erred in 10 denying his request for personnel records of a law enforcement officer. See id. 11 The court of appeal ordered Petitioner’s abstract of judgment corrected but 12 otherwise affirmed the judgment. See id. at 10. Petitioner then filed a 13 petition for review, which the California Supreme Court denied on July 21, 14 2021.1 [See Dkt. No. 1 at 3.] 15 On October 19, 2021, Petitioner filed a petition for writ of certiorari in the U.S. Supreme Court, which denied it on January 10, 2022. See U.S. Sup. 16 Ct. Docket Search, https://www.supremecourt.gov/docket/docket.aspx (search 17 by name) (last visited Nov. 29, 2022). Petitioner then filed a motion to recall 18 the remittitur in the court of appeal, which denied the motion on September 19 26, 2022. See Cal. App. Cts. Case Info., http://appellatecases.courtinfo.ca.gov/ 20 (search Dist. 4, Div. 2 for “Moses” with “Estrada”) (last visited Nov. 29, 2022). 21

II. Discussion

22 A. Duty to Screen 23 Rule 4 of the Rules Governing § 2254 Cases requires the Court to 24 conduct a preliminary review of the Petition. Pursuant to Rule 4, the Court 25 must summarily dismiss a petition “[i]f it plainly appears from the face of the 26 27

28 1 Based on Petitioner’s allegations, it appears that he only sought review of the court of appeal’s denial of his sufficiency-of-the-evidence claim. [See Dkt. No. 1 at 3.]

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1 petition . . . that the petitioner is not entitled to relief in the district court.” 2 Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 3 F.2d 490 (9th Cir. 1990). Based on a preliminary review, the Petition appears 4 to be subject to dismissal because it contains no specific grounds for relief and 5 because Petitioner concedes that any ground for relief he seeks to raise is 6 unexhausted. Petitioner therefore must show cause as to why the Petition 7 should not be dismissed. 8 B. The Petition Does Not Identify Any Grounds for Relief 9 Rule 2(c) of the Rules Governing Section 2254 Cases states that a 10 petition “shall specify all the grounds for relief which are available to the 11 petitioner and of which he has or by the exercise of reasonable diligence 12 should have knowledge and shall set forth in summary form the facts 13 supporting each of the grounds thus specified.” Rule 2(c), 28 U.S.C. foll. § 14 2254. “[I]n order to substantially comply with the Section 2254 Rule 2(c), a 15 petitioner must state specific, particularized facts which entitle him or her to habeas corpus relief for each ground specified. These facts must consist of 16 sufficient detail to enable the court to determine, from the face of the petition 17 alone, whether the petition merits further habeas corpus review.” Adams v. 18 Armontrout, 897 F.2d 332, 334 (9th Cir. 1990). “‘[N]otice’ pleading is not 19 sufficient, for the petition is expected to state facts that point to a ‘real 20 possibility of constitutional error.’” Rule 4 Advisory Committee Notes 21 (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.1970)). 22 Here, Petitioner has not complied with Habeas Rule 2(c). Indeed, he 23 has not identified any ground for relief, let alone alleged particularized facts 24 supporting any such ground or grounds. Instead, he states only the following: 25 “Claims are not exhausted must file state habeas corpus in lieu of court of 26 appeal denial of recall of remittitur.” [Dkt. No. 5.] Although he has attached 27 what appears to be the motion for recall of remitter that he filed in the court 28

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1 of appeal,2 it is not clear which of the claims asserted therein, if any, he seeks 2 to assert in this action. Accordingly, dismissal is warranted unless he can 3 remedy the deficiency.3 See McFarland v. Scott, 512 U.S. 849, 856 (1994) 4 (habeas petitions that appear on their face to be legally insufficient are 5 subject to summary dismissal pursuant to Rule 4). 6 C. Any Claim Petitioner Seeks to Assert Is Unexhausted

7 Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a 8 petitioner has exhausted the remedies available in state court. Exhaustion 9 requires that the petitioner’s contentions were fairly presented to the state 10 courts, Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), and disposed of 11 on the merits by the highest court of the state, Greene v. Lambert, 288 F.3d 12 1081, 1086 (9th Cir. 2002). As a matter of comity, a federal court will not 13 entertain a habeas petition unless the petitioner has exhausted the available 14 state judicial remedies on every ground presented in it. See Rose v. Lundy, 15 455 U.S. 509, 518-19 (1982). 16 Here, Petitioner concedes that he had not exhausted whichever ground 17 or grounds for relief he seeks to assert in this action. [See Dkt. No. 1 at 5.] 18 Accordingly, the Petition is subject to dismissal on that basis unless Petitioner 19 takes steps to cure the defect. See Rasberry v. Garcia, 448 F.3d 1150, 1154 20 (9th Cir. 2006). 21

22 2 As the copy of the motion attached to the Petition is not filed-stamped, the Court cannot determine if it is the same motion that he filed in the court of appeal. 23 3 The Court also notes that many of the ineffective-assistance claims that Petitioner 24 asserted in his motion for recall of the remittitur fail to set forth any supporting 25 facts or clearly identify how counsel’s performance was allegedly deficient or prejudicial. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) (petitioner 26 cannot succeed on ineffective-assistance-of-counsel claim unless he can show that counsel’s performance was unreasonable and that the reasonable likelihood exists 27 that but for his counsel’s errors, the result would have been different); see also 28 James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”).

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1 III. Conclusion 2 For the foregoing reasons, Petitioner must show cause why the Petition 3 should not be dismissed for failure to state a claim and for failure to exhaust. 4 Accordingly, the Court ORDERS Petitioner to select one of the following 5 options by no later than by January 6, 2023: 6 Option One: 7 (1) Petitioner must file a First Amended Petition on the Central District 8 of California’s form Petition for Writ of Habeas Corpus. The 9 amended petition should reflect the same case number (CV 5:22-cv- 10 1893-RSWL-PD), be clearly labeled “First Amended Petition,” and be 11 filled out completely. In section 8 of the First Amended Petition, 12 Petitioner must specify separately and concisely each federal 13 constitutional claim that he seeks to raise and answer all of the 14 questions pertaining to each claim. Petitioner is free to attach 15 additional pages if he asserts more than five grounds for relief. The Court Clerk is directed to send Petitioner a blank copy the Central 16 District’s form Petition for Writ of Habeas Corpus by a Person in 17 State Custody; AND 18 (2) If Petitioner concedes that the First Amended Petition is completely 19 unexhausted, he should file a formal stay-and-abey motion under 20 Rhines v. Weber, 544 U.S. 269 (2005), if he believes he can make the 21 required showings. Under Rhines, the prerequisites for obtaining a 22 stay while the petitioner exhausts his state remedies are as follows: 23 (1) he must show good cause for his failure to earlier exhaust the 24 claim in state court, (2) the unexhausted claim must not be “plainly 25 meritless,” and (3) he must not have engaged in “abusive litigation 26 tactics or intentional delay.” 544 U.S. at 277-78. Petitioner is 27 advised now, however, that he is not required to obtain a stay before 28

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I he starts the process of exhausting any unexhausted claim. Nothing 2 prevents him from immediately returning to state court to attempt 3 to exhaust his unexhausted claims. 4 Option Two: 5 Petitioner may request that the Petition be dismissed without prejudice 6 || under Federal Rule of Civil Procedure 41(a)(1), with the understanding that 7 || any later petition might be time barred under § 2244(d)(1). See 28 U.S.C. 8 || § 2244(d)(1) (“A 1-year period of limitation shall apply to an application for a 9 || writ of habeas corpus by a person in custody pursuant to the judgment of a 10 || State court.”). 11 Petitioner is admonished that his failure to timely respond to 12 || this Order will result in the Court dismissing this action without 13 || prejudice for failure to comply with Habeas Rule 2(c), failure to 14 || exhaust, and failure to prosecute and comply with court orders. See 15 || Fed. R. Civ. P. 41(b). 16 17 | 1T 1S SO ORDERED. 18 19 0 DATED: November 30, 2022 41 AP aluce Lona koe_ 9 PATRICIA DONAHUE

UNITED STATES MAGISTRATE JUDGE

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