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

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12 TAVNER COOK, No. 2:23-cv-01107-DOC-BFM 13 Petitioner, v. ORDER TO SHOW CAUSE 14 WHY HABEAS PETITION

JUDGE KALRA S. UPINDER, SHOULD NOT BE DISMISSED

15 Respondent. 16 17 18 SUMMARY OF ORDER 19 This is a federal habeas petition challenging a state conviction. Petitioner 20 Tavner Cook is serving a 40-year sentence following his convictions for second 21 degree murder and related gang and firearm enhancements. His Petition raises 22 three claims: a Fourth Amendment claim premised on a search of his cell phone 23 (Ground One); a Fifth Amendment claim concerning the use of undercover 24 informants in his jail cell (Ground Two); and a claim of instructional error 25 (Ground Three). But before a petitioner can file a federal habeas petition in 26 federal court, he must present his claims to the highest state court—a process 27 called “exhaustion.” From what Petitioner has provided and from publicly 28 1 available dockets, it appears that Petitioner has only exhausted Ground Three, 2 the instructional error claim, and that the two remaining claims are 3 unexhausted. A petition containing both exhausted and unexhausted claims is 4 subject to dismissal. The Court therefore orders Petitioner to explain whether 5 he has presented Grounds One and Two to the California Supreme Court. If he 6 has not, he must tell the Court if he wants to dismiss the unexhausted claims, 7 or dismiss the Petition in its entirety, or if he wants to seek a stay of this federal 8 action while he pursues state court exhaustion. 9 The Petition has three other problems that could potentially be addressed 10 in an amended pleading. First, Petitioner’s claim in Ground One appears to be 11 barred under the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465 12 (1976). That case holds that a state prisoner may not raise a Fourth Amendment 13 claim in a federal habeas action if he or she had the opportunity for “full and 14 fair” consideration of the claim in state court. 428 U.S. at 494. Second, Petitioner 15 in Ground Two fails to state a claim for federal habeas relief. And third, 16 Petitioner failed to name the proper respondent. 17 If Petitioner fails to timely respond to this order, the Court will 18 recommend that his Petition be dismissed for failure to exhaust. 19 20 BACKGROUND 21 A. Petitioner’s State Court Conviction 22 Petitioner was convicted of second-degree murder in connection with a 23 gang-related shooting.1 Of relevance to Ground One in the Petition, trial 24 evidence showed that after the shooting, the victim’s sister (who was also a 25

26 1 The California Court of Appeal provided a detailed summary of the facts 27 underlying the conviction in its order denying his direct appeal. (See ECF No. 1 at 23-49). The Court recites only those facts relevant to the claims in the Petition 28 and this Order to Show Cause. 1 witness to the crime) received a text message from a friend. The message 2 contained a picture of a cell phone displaying a photograph of Petitioner. The 3 friend stated that he found the cell phone at the scene of the shooting. The 4 victim’s sister identified Petitioner as the shooter from the photograph. The cell 5 phone was ultimately given to a police officer, who noticed that it was turned on 6 and logged into an Instagram account. The officer scrolled through the account 7 and saw around 30 to 40 pictures of Petitioner. (See ECF No. 1 at 29.) 8 Of relevance to Ground Two, the trial evidence showed that after 9 Petitioner was arrested, he was placed in a jail cell along with two undercover 10 informants as part of a Perkins operation to elicit incriminating statements.2 11 Petitioner made statements about the shooting that were audio recorded and 12 played for the jury. (See id. at 31-32.) 13 B. Claims in Federal Habeas Petition 14 Petitioner filed his Petition in this Court on February 13, 2023. (ECF No. 15 1). He asserts the following three grounds for relief challenging his conviction. 16 1. Ground One 17 Petitioner asserts that the Fourth Amendment was violated and states 18 the following facts in support: after the search of the crime scene by police 19 officers, his unlocked cell phone was “illegally entered by a certain party.” (Id. 20 at 6.) A “picture of [Petitioner] was then taken . . . by a certain party[’]s cell 21 phone” and was texted to the victim’s sister before the cell phone was given to 22 the “returning officers.” (Id.) An officer noticed the phone was logged into an 23 24 25

26 2 In a Perkins operation, an undercover government agent is placed in a cell 27 with the suspect. The agent is not required to give Miranda warnings before questioning or interacting with the suspect. Illinois v. Perkins, 496 U.S. 292, 28 294, 296 (1990). 1 Instagram account that displayed numerous photographs of Petitioner. (Id.) 2 2. Ground Two 3 Petitioner asserts that the Fifth Amendment was violated because the 4 Perkins operation “was put into effect to entrap [him].” (Id. at 6-7.) 5 3. Ground Three 6 Petitioner states that the Sixth Amendment was violated and in support 7 references pages 39 to 50 of his Petition for Review filed in the California 8 Supreme Court, which he attached to the Petition. (Id. at 7, 50.) In that section 9 of the Petition for Review, petitioner argues that instructing the jury with 10 CALCRIM No. 315 violated his due process rights because the instruction 11 erroneously directed the jury to consider eyewitness identification certainty 12 when deciding how much weight to give to the witness’s testimony. (Id. at 88- 13 96.) 14 C. Facts About Exhaustion 15 In his direct appeal of his conviction, Petitioner raised the following 16 claims: (1) he was denied his Fourth Amendment right to freedom from a 17 warrantless seizure of his person when the trial court found an independent 18 source for his arrest after quashing the arrest warrant and finding no good faith; 19 (2) the trial court erred in holding an in camera informant hearing without the 20 informants present and in refusing to disclose the identity of the Perkins 21 undercover informants; and (3) the trial court’s instruction of the jury with 22 CALCRIM No. 315 violated due process. (Id. at 19-22.) The California Court of 23 Appeal affirmed the judgement in a reasoned decision. (Id. at 23-49.) Petitioner 24 raised the same three claims in his Petition for Review. (Id. at 51-53.) The 25 California Supreme Court summarily denied review on April 27, 2022. (See 26 California Appellate Courts website at appellatecases.courtinfo.ca.gov.) 27 The California Court of Appeal’s docket reflects that on February 21, 28 1 2023, approximately a week after filing his Petition in this Court, Petitioner 2 filed a habeas petition in the appellate court. (See California Appellate Courts 3 website at appellatecases.courtinfo.ca.gov.)3 The petition was denied on March 4 24, 2023, in an order stating the following:

5 The petition for writ of habeas corpus filed February 21, 2023, 6 has been read and considered. It is denied because it raises vague and conclusory allegations without any explanation of the basis for 7 the allegations. (In re Swain (1949) 34 Cal.2d 300, 303-304.) 8 Moreover, the petition raises claims which could have been raised on appeal, but were not, and petitioner has failed to allege facts 9 establishing an exception to the rule barring habeas consideration 10 of claims that could have been raised on appeal. (In re Reno (2012) 55 Cal.4th 428, 490-493.) 11

12 (See id.) 13 A search of the docket of the California Supreme Court does not show any 14 other filings by Petitioner. (See id.) 15 16 ANALYSIS 17 Rule 4 of the Rules Governing Section 2254 Cases in the United States 18 District Courts allows a district court to dismiss a petition if it “plainly appears 19 from the petition and any attached exhibits that the petitioner is not entitled to 20 relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 21 Cases. Based upon the Petition and the California state court records available 22 to the Court, and for the reasons discussed below, the Court orders Petitioner 23 to show cause why the Petition should not be dismissed for failure to 24 25 26

27 3 A copy of this state petition is not part of the record. The Court therefore 28 cannot ascertain what claims were raised in this petition. 1 exhaust. 2 A. Failure to Exhaust Grounds One and Two 3 A state prisoner must exhaust his state court remedies before a federal 4 court may consider granting habeas corpus relief. See 28 U.S.C. § 2254(b)(1)(A); 5 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion 6 requirement, a habeas petitioner must “give the State the opportunity to pass 7 upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. 8 Henry, 513 U.S. 364, 365 (1995) (citation and quotation marks omitted). For a 9 petitioner in California state custody, this generally means that the petitioner 10 must have fairly presented his federal claims to the California Supreme Court. 11 See O’Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); see also Gatlin 12 v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O’Sullivan to 13 California). A claim has been fairly presented if the petitioner presents “both 14 the operative facts and the federal legal theory on which his claim is based.” 15 Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (citation and quotation marks 16 omitted); Gray v. Netherland, 518 U.S. 152, 162-63 (1996). 17 A “mixed” petition is a petition containing both exhausted and 18 unexhausted claims. Under controlling precedent, a mixed petition is subject to 19 dismissal without prejudice. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (“In 20 sum, because a total exhaustion rule promotes comity and does not 21 unreasonably impair the prisoner’s right to relief, we hold that a district court 22 must dismiss habeas petitions containing both unexhausted and exhausted 23 claims.”). The Court may raise a petitioner’s failure to exhaust sua sponte—that 24 is, even without the opposing party raising it—and may summarily dismiss a 25 petition without prejudice for failure to exhaust. See Stone v. San Francisco, 968 26 F.2d 850, 855-56 (9th Cir. 1992); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th 27 28 1 Cir. 1981). 2 In his Petition, Petitioner indicates that he exhausted Grounds One and 3 Two in his Petition for Review. (See ECF No. 1 at 6-7.) But the allegations in 4 Grounds One and Two are not the same as the claims he presented to the 5 California Supreme Court on direct appeal. The Petition’s Ground One, the 6 Fourth Amendment claim, asserts that Petitioner’s cell phone was “illegally 7 entered” and a photograph of him was texted to the victim’s sister before the cell 8 phone was given to the police. (Id. at 6.) In contrast, the Fourth Amendment 9 claim he presented on direct review asserts he was subjected to a warrantless 10 arrest. (Id. at 36-43.) In Ground Two of the Petition, he asserts that the Fifth 11 Amendment was violated because the Perkins operation was carried out to 12 entrap him. (Id. at 6.) On direct appeal, his Perkins-related claim challenged the 13 trial court’s refusal to disclose the identity of the undercover informants. (Id. at 14 43-46.) As shown, there is no overlap between Grounds One and Two and the 15 claims Petitioner raised in his direct appeal. And while he recently filed a 16 habeas petition in the California Court of Appeal, the Court is not aware of any 17 filings in the California Supreme Court in which he could have exhausted his 18 claims. 19 Based on the foregoing, Grounds One and Two appear to be unexhausted. 20 The Petition is therefore subject to dismissal as a “mixed” Petition. See 28 U.S.C. 21 § 2254(b)(1)(A). 22 If Petitioner contends that he has in fact exhausted his claims in Grounds 23 One and Two, he must promptly inform the Court that he has fairly presented 24 these claims to the California Supreme Court and attach a copy of the California 25 Supreme Court’s denial. 26 On the other hand, if Petitioner has not already exhausted Grounds One 27 28 1 and Two, he has the following four options: 2 Option 1: Petitioner may request a voluntary dismissal of the entire action 3 under Federal Rule of Civil Procedure 41(a). Such a dismissal would be without 4 prejudice to Petitioner refiling his claims once they are exhausted in the state 5 court. The Court warns Petitioner that any dismissed claims may be later 6 subject to the federal statute of limitations for habeas claims: “[a] 1-year period 7 of limitation shall apply to an application for a writ of habeas corpus by a person 8 in custody pursuant to the judgment of a State court.” See also 28 U.S.C. 2244 9 (d)(1). To proceed under Option 1, Petitioner may use the attached Form CV-09 10 (Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 31(a) or (c)). 11 Option 2: Petitioner may request a voluntary dismissal of his unexhausted 12 claims (Grounds One and Two) and elect to proceed only on his exhausted claim 13 (Ground Three). Petitioner is advised that if he elects to proceed with his 14 exhausted claim, any future habeas petition containing the dismissed claims, or 15 any other claims that could have been raised in the instant Petition, may be 16 rejected as successive. To proceed under Option 2, Petitioner must file a 17 declaration, signed under penalty of perjury, stating that he elects to dismiss 18 his unexhausted Grounds One and Two and proceed in this action only with his 19 exhausted Ground Three. 20 Option 3: Petitioner may ask the Court for a Rhines stay while he pursues 21 exhaustion in the state courts. See Rhines v. Weber, 544 U.S. 269 (2005) 22 (authorizing stays of “mixed” petitions). To obtain a Rhines stay, a petitioner 23 must show: (1) that there is good cause for the failure to exhaust; (2) that the 24 unexhausted claims are potentially meritorious; and (3) that the petitioner did 25 not intentionally delay pursuing exhaustion in the state courts. Id. at 278. 26 Petitioner is cautioned that at this time the Court would not be inclined to grant 27 a Rhines stay given that, as discussed below, Ground One appears to be barred 28 1 and Ground Two fails to state a claim for federal habeas relief. 2 Option 4: Pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), 3 Petitioner can dismiss his unexhausted claims (Grounds One and Two) and the 4 Court can stay his remaining exhausted claim (Ground Three) while he returns 5 to state court to exhaust his dismissed claims. A Kelly stay does not require a 6 showing of good cause. But Petitioner is warned that “[a] petitioner seeking to 7 use the Kelly procedure will be able to amend his unexhausted claims back into 8 his federal petition once he has exhausted them only if those claims are 9 determined to be timely.” King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009). 10 To proceed under Option 4, Petitioner must file a declaration, signed under 11 penalty of perjury, electing a stay pursuant to Kelly, and stating that he 12 dismisses Grounds One and Two. 13 B. Ground One Is Not Cognizable 14 If Petitioner decides to proceed with his Petition, there are other issues 15 with his Petition that he will need to address. 16 First, the Fourth Amendment challenge alleged in Ground One appears 17 to be barred pursuant to the rule in Stone v. Powell. The Supreme Court in Stone 18 held that “where the State has provided an opportunity for full and fair 19 litigation of a Fourth Amendment claim, a state prisoner may not be granted 20 federal habeas corpus relief on the ground that evidence obtained in an 21 unconstitutional search or seizure was introduced at his trial.” Stone, 428 U.S. 22 at 494. Under Stone, “[a] Fourth Amendment claim is not cognizable in federal 23 habeas proceedings if a petitioner has had a full and fair opportunity to litigate 24 the claim in state court.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 25 1996). 26 “The relevant inquiry is whether petitioner had the opportunity to litigate 27 his claim, not whether he did in fact do so or even whether the claim was 28 1 correctly decided.” Ortiz-Sandoval, 81 F.3d at 899 (9th Cir. 1996). California 2 provides criminal defendants with a full and fair opportunity to litigate Fourth 3 Amendment claims through the remedy provided by California Penal Code 4 section 1538.5. This provision permits a defendant to file a motion to suppress 5 evidence on the ground that it was obtained in violation of the Fourth 6 Amendment. See Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990). 7 Here, even if Petitioner did not litigate his Fourth Amendment claim in 8 state court, it appears that he had the opportunity to do so. From a review of 9 the Petition and attachments, there is no indication that Petitioner was 10 prevented from filing a motion to suppress under section 1538.5. Accordingly, 11 under Stone, Ground One appears to not be cognizable on federal habeas review. 12 C. Ground Two Fails to State a Claim 13 Second, Ground Two is defective because it fails to state a claim for federal 14 habeas relief. Rule 2(c) of the Rules Governing Habeas Corpus cases requires 15 the petitioner to “specify all the grounds for relief available to [him or her]” and 16 “state the facts supporting each ground.” Rule 2(c), Rules Governing Section 17 2254 Cases, 28 U.S.C. foll. § 2254; see also Advisory Committee Note to Rule 4, 18 Rules Governing Section 2254 Cases Habeas Corpus Cases (“‘[N]otice’ pleading 19 is not sufficient, for the petition is expected to state facts that point to a real 20 possibility of constitutional error.”) (citation and some quotation marks 21 omitted). 22 A prime purpose of Rule 2(c)’s demand that habeas petitioners plead with 23 particularity is to assist the district court in determining whether the petitioner 24 may be entitled to relief and, in turn, whether respondent should be ordered to 25 address the allegations in the petition. Mayle v. Felix, 545 U.S. 644, 655-56 26 (2005) (citing 28 U.S.C. § 2253). Summary dismissal of a habeas petition is 27 appropriate when the allegations are vague or conclusory, or “palpably 28 1 incredible.” Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (citations 2 and quotation marks omitted). 3 Petitioner’s Fifth Amendment claim in Ground Two is not supported by 4 any specific factual allegations that would entitle him to habeas relief if they 5 were true. His assertion that the Perkins operation was utilized to entrap him 6 fails to state a federal habeas claim. “Entrapment” is an affirmative defense, not 7 a constitutional violation. See United States v. Gurolla, 333 F.3d 944, 951 (9th 8 Cir. 2003). Moreover, a Perkins operation is a lawfully permitted ruse by 9 government agents to elicit incriminating statements from a suspect and has 10 nothing to do with inducing a suspect to commit a crime. See id. (entrapment 11 defense contains two elements: government inducement of a crime and absence 12 of predisposition on the part of defendant). Petitioner does not allege any facts 13 suggesting that he was coerced into making his jail cell statements or facts that 14 otherwise challenge the voluntariness of his statements. For these reasons, his 15 allegations in Ground Two are too conclusory to state a claim for federal habeas 16 relief. 17 D. Failure to Name the Proper Respondent 18 Third, a petitioner seeking habeas corpus relief must name the state 19 officer having custody of him as the respondent to the Petition. See Rule 2(a), 20 Rules Governing Section 2254 Cases in the United States District Courts. This 21 person typically is the warden of the institution where the petitioner is 22 incarcerated. Stanley v. Cal. Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994); 23 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam) 24 (explaining that a federal habeas petitioner’s immediate custodian is the only 25 party that can produce “the body” of the petitioner). Here, Petitioner incorrectly 26 names a judge as respondent, instead of the warden of his prison. 27 The failure to name a proper respondent requires dismissal for lack of 28 1 jurisdiction, Stanley, 21 F.3d at 360, but this is a fixable problem. As explained 2 below, Petitioner can correct this error by naming the proper respondent in an 3 amended pleading. 4 E. Order to Show Cause 5 Before the Court recommends dismissal of the action, the Court will give 6 Petitioner an opportunity to respond. Petitioner is ORDERED to show cause 7 why the Court should not recommend dismissal of the Petition for 8 failure to exhaust Grounds One and Two. By no later than July 21, 2023, 9 Petitioner shall file a Response addressing the exhaustion issue as follows: (1) 10 if Petitioner agrees that Grounds One and Two are unexhausted, he shall state 11 so clearly and inform the Court which of the four options he elects to take (that 12 is, whether he seeks to dismiss the entire Petition or just dismiss Grounds One 13 and Two, or whether he elects to seek a Rhines stay or a Kelly stay); or (2) if 14 Petitioner asserts that Grounds One and Two are in fact exhausted, he must 15 demonstrate that he fairly presented the claims to the California Supreme 16 Court and that the claims were denied. 17 If Petitioner decides to move forward with his Petition, he must address 18 the other noted problems. To correct the jurisdictional defect caused by naming 19 the wrong respondent, Petitioner should name the proper respondent in his 20 proposed Amended Petition. The proposed Amended Petition must be clearly 21 labeled “Amended Petition” and have the same case number (No. 2:23-cv-01107- 22 DOC-BFM). The proposed Amended Petition must utilize the form petition (CV- 23 069) that will accompany this Order. It must contain ALL the grounds for relief 24 that Petitioner intends to pursue. In particular, Petitioner must clearly state 25 each federal constitutional violation that he alleges has occurred and clearly 26 state the facts that support each claim. Petitioner is advised that if he includes 27 a Fourth Amendment claim in the proposed Amended Petition, he should also 28 1 explain why it is not barred under Stone v. Powell. 2 * * * 3 Along with this Order to Show Cause, the Court Clerk is directed 4 to send petitioner a blank Central District Petition for Writ of Habeas 5 Corpus by a Person in State Custody (Form CV-069), and a blank 6 Central District “Notice of Dismissal Pursuant to Federal Rules of Civil 7 Procedure 41(a) or (c)” (Form CV-09). 8 Petitioner’s failure to file a timely response as ordered may result 9 in the Court recommending that his case be dismissed for failure to 10 exhaust and/or for failure to prosecute and to follow court orders. 11

12 DATED: June 30, 2023

13 ____________________________________________ 14 BRIANNA FULLER MIRCHEFF

UNITED STATES MAGISTRATE JUDGE

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