1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION

11

12 BRANDON TROY CONTRERAS, No. 2:23-cv-02535-MEMF-BFM 13 Petitioner, v. ORDER TO SHOW CAUSE 14 WHY HABEAS PETITION

SANTA BARBARA BAR SHOULD NOT BE DISMISSED

15 ASSOCIATION. WITHOUT PREJUDICE

16 Respondent.

17 18 SUMMARY OF ORDER 19 This is a federal habeas petition challenging a state conviction. Liberally 20 construed, Petitioner Brandon Troy Contreras complains about the 21 representation he received from two attorneys during the course of two criminal 22 cases. But before a petitioner can file a federal habeas petition in federal court, 23 he must present his claims to the state courts—a process called “exhaustion.” 24 From what Petitioner has provided and from publicly available dockets, it 25 appears Petitioner has not exhausted his claims. The Court therefore orders Mr. 26 Contreras to explain whether he has presented his claims to the state court, and 27 if not, he must tell the Court why his case should not be dismissed. If Mr. 28 Contreras fails to timely respond to this order, the Court will 1 recommend that his Petition be dismissed without prejudice. 2 3 FACTUAL BACKGROUND 4 A. Procedural History in the California Courts 5 The history of Brandon Contreras’s cases is set out in a recent California 6 Court of Appeal decision: 7 In October 2018, C.Z. woke up and saw Brandon Troy 8 Contreras carrying property from her home. Sheriff's deputies 9 apprehended Contreras later that day. He still had C.Z.’s property. 10 He was in a stolen car. 11 Prosecutors charged Contreras with first degree residential 12 burglary (Pen. Code,1 §§ 459, 460, subd. (a)), receiving stolen 13 property (§ 496, subd. (a)), and unlawfully driving or taking a 14 vehicle (Veh. Code, § 10851, subd. (a)). They also alleged that a 15 person was present when Contreras committed burglary (§ 667.5, 16 subd. (c)(21)). Contreras pleaded no contest to the burglary in 17 exchange for the dismissal of the other two charges and the hot 18 prowl allegation. The trial court suspended imposition of sentence, 19 and placed him on three years of formal probation. 20 In December 2019, Contreras stole items from a grocery 21 store. When confronted by the store’s owner, Contreras returned 22 the stolen goods. He also threw a rock at the owner. 23 Prosecutors charged Contreras with assault with force likely 24 to cause great bodily injury (§ 245, subd. (a)(4)) and misdemeanor 25 shoplifting (§ 459.5, subd. (a)). They also alleged that he had 26 suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- 27 (d)) and prior serious felony conviction (§ 667, subd. (a)(1)). 28 Contreras pleaded guilty to the two charges, and admitted the 1 allegations. The trial court continued sentencing and released him 2 to a residential treatment program. 3 Contreras violated his probation terms and went through 4 several competency proceedings over the next few years. When his 5 competency was restored, the trial court revoked probation and 6 sentenced him to four years in state prison on his 2018 burglary 7 conviction and a consecutive two years on his 2019 assault. It 8 dismissed his shoplifting conviction, struck the prior strike and 9 prior serious felony enhancements, and suspended all fines and 10 fees. Contreras’s sentences were deemed served, and he was 11 released on parole. 12 People v. Contreras, Case No. B322199, 2023 WL 1789517, at *1 (Cal. Ct. App. 13 Feb. 7, 2023). Mr. Contreras filed a notice of appeal that covered both the 14 burglary case and the assault. 15 On appeal, Mr. Contreras’s counsel filed a Wende brief.1 The Court of 16 Appeal affirmed his convictions. Id. From a search of the dockets of the 17 California Supreme Court, it does not appear that Mr. Contreras filed a petition 18 for review of the appellate court’s decision, or that he filed any state habeas 19 petition. 20 B. Claims in Federal Habeas Petition 21 On April 3, 2023, this Court received Mr. Contreras’s petition. (ECF 1 22 (“Petition”).) It was constructively filed on March 29, 2023, the date Petitioner 23 signed it. See Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (“When 24 25 1 A Wende brief is one in which appellate counsel for a criminal defendant tells the state appellate court that she has been unable to find any arguable 26 appellate issues. Once a Wende brief is filed, the state appellate court is required to conduct an independent review of the entire appellate record to decide if there 27 are any arguable issues which should be raised on appellant’s behalf. People v. Wende, 600 P.2d 1071, 1075 (Cal. 1979). 28 1 a prisoner gives prison authorities a habeas petition or other pleading to mail 2 to court, the court deems the petition constructively ‘filed’ on the date it is 3 signed.”). Construed liberally, the Petition raises two claims relating to two 4 different phrases of his underlying cases. 5 1. Claim One: Contreras’s burglary case 6 Mr. Contreras explains that he was represented in his burglary case by 7 court-appointed counsel Michael Anthony Carty. Contreras claims that Carty’s 8 representation was inadequate in that he manipulated Petitioner into entering 9 a plea to a charge that was a “strike” under California law and deprived him of 10 a chance to pursue mental health diversion under California Penal Code section 11 1368. (Pet. at 3.) This manipulation was accomplished, he claims, through 12 “misrepresentation and unconstitutional conduct.” (Pet. at 3.) 13 2. Claim Two: Contreras’s assault case 14 Mr. Contreras claims that his court-appointed counsel in his assault case 15 manipulated Petitioner into a “legally unsound sentencing and conviction.” 16 More specifically, Contreras explains that in December 2019, he was offered 17 release into a program for psychiatric treatment in the community. In February 18 2020, he left the country using false documents, and then was returned to Santa 19 Barbara County. Once back, he went through two rounds of competency 20 proceedings in front of Judge Michael Carrozzo. He was found incompetent, 21 despite two different mental health assessors finding him competent. Mr. 22 Contreras claims he made several attempts to fire his counsel, without success. 23 He complains that his counsel, Sanford Horowitz, did not present evidence or 24 investigate his claims of “judicial inadequacy and fraudulenc[e] of plea 25 agreement.” (Pet. at 4.) 26 3. Facts about exhaustion 27 Mr. Contreras’s Petition indicates that he did not challenge his 28 convictions in the California Court of Appeal, though, as noted above, a Wende 1 brief was filed on his behalf. (Pet. at 5.) Petitioner claims that he sought review 2 in the California Supreme Court, but does not provide a case number. (Pet. at 3 5) As noted, a search of the docket of the California Supreme Court does not 4 show any filings by Mr. Contreras. In terms of other filings, Mr. Contreras notes 5 his federal civil rights complaint pending in this Court, but does not report other 6 filings in the state court. (Pet. at 6.) 7 8 ANALYSIS 9 Rule 4 of the Rules Governing Section 2254 Cases in the United States 10 District Courts allows a district court to dismiss a petition if it “plainly appears 11 from the petition and any attached exhibits that the petitioner is not entitled to 12 relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 13 Cases. Based upon the Petition and the California state court records available 14 to the Court, and for the reasons discussed below, the Court orders Petitioner to 15 show cause why the Petition should not be dismissed for failure to exhaust. 16 A state prisoner must exhaust his state court remedies before a federal 17 court may consider granting habeas corpus relief. See 28 U.S.C. § 2254(b)(1)(A); 18 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion 19 requirement, a habeas petitioner must “give the State the opportunity to pass 20 upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. 21 Henry, 513 U.S. 364, 365 (1995) (citation and quotation marks omitted). For a 22 petitioner in California state custody, this generally means that the petitioner 23 must have fairly presented his federal claims to the California Supreme Court. 24 See O’Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); see also Gatlin 25 v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O’Sullivan to 26 California). A claim has been fairly presented if the petitioner presents “both 27 the operative facts and the federal legal theory on which his claim is based.” 28 Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (citation and quotation marks 1 omitted); Gray v. Netherland, 518 U.S. 152, 162-63 (1996). The Court may raise 2 a petitioner’s failure to exhaust sua sponte—that is, even without the opposing 3 party raising it—and may summarily dismiss a petition without prejudice for 4 failure to exhaust. See Stone v. San Francisco, 968 F.2d 850, 855-56 (9th Cir. 5 1992); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 6 Here, it does not appear that Mr. Contreras has presented his claims 7 about his counsels’ deficient representation to the California Supreme Court (or 8 anywhere else). Because his claims appear to be wholly unexhausted, the 9 Petition appears to be subject to summary dismissal without prejudice. See 28 10 U.S.C. § 2254(b)(1)(A). 11 Before the Court recommends dismissal of the action, the Court will give 12 Petitioner an opportunity to respond. Petitioner is ORDERED to show cause 13 why the Court should not recommend dismissal of the Petition for failure to 14 exhaust his claims in state court. Petitioner shall respond to this Order to Show 15 Cause in writing no later than July 7, 2023. Petitioner may discharge the 16 Order to Show Cause by filing one of the following two documents: 17 (1) Notice of Dismissal. Petitioner may file a notice of dismissal of his 18 Petition. The Clerk is directed to attach Form CV-09 (Notice of 19 Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c)) 20 to this Order to Show Cause. Such a dismissal would be without 21 prejudice to Mr. Contreras refiling his claims once they are 22 exhausted in the state court. The Court warns Petitioner that any 23 dismissed claims may be later subject to the federal statute of 24 limitations for habeas claims: “[a] 1-year period of limitation shall 25 apply to an application for a writ of habeas corpus by a person in 26 custody pursuant to the judgment of a State court.” 28 U.S.C. § 27 2244(d)(1). 28 1 (2) Response to Order to Show Cause. If Petitioner believes 2 he did sufficiently exhaust his state court remedies, he may explain 3 this in a written response to this Order to Show Cause. Petitioner 4 should attach to his response copies of any documents establishing 5 that the claims are exhausted, including a complete copy of his 6 petition in the California Supreme Court and any decision by the 7 California Supreme Court. 8 Petitioner’s failure to file a timely response addressing the 9 Court’s exhaustion concerns will result in the Court recommending 10 that his case be dismissed for failure to exhaust claims in state court 11 pursuant to 28 U.S.C. § 2254(b)(1)(A) and/or for failure to prosecute and 12 to follow court orders. 13 If Petitioner decides to move forward with his Petition, he will have to 14 name a different respondent. The Santa Barbara Bar Association may be the 15 entity that assigned him the attorney he now complains of, but it is not the 16 entity that has control over his “custody” at this point. The failure to name a 17 proper respondent requires dismissal for lack of jurisdiction, Stanley v. Cal. 18 Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994), but this is a fixable problem. The 19 California Court of Appeal decision suggests that Mr. Contreras is on state 20 parole, or at least that he was on parole as of a few months ago. For a person on 21 state parole, the proper respondent is the petitioner’s probation or parole officer 22 “and the official in charge of the parole or probation agency, or the state 23 correctional agency, as appropriate.” Rules Governing Section 2254, advisory 24 committee notes to Rule 2; see also Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 25 (9th Cir. 1996). If Petitioner decides not to dismiss his Petition, he should 26 include in his filing a motion to amend the Petition to name 27 28 1 || a proper respondent and tell the Court who the proper respondent or 2 || respondents are. 3 4 || DATED: June 2, 2023 5 ‘lui f 6 BRIANNA FULLER MIRCHERF 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28