BACKGROUND

24 The Court has carefully reviewed the Petition and the relevant state court 25 26

27 1 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts 28 provides that a petition for writ of habeas corpus “must” be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the 1 2 This case stems from a 2018 California conviction and sentence following a 3 jury trial. Petitioner was convicted of assault with a deadly weapon in Los Angeles 4 County Superior Court Case No. LA087550 and was sentenced to five years in state 5 prison on July 25, 2018. [Petition at 2.] Petitioner appealed (California Court of 6 Appeal Case No. B292716). His appellate counsel filed a Wende brief on January 7 11, 2019, and Petitioner voluntarily dismissed his appeal on February 11, 2019. 8 Several months later, on June 3, 2019, Petitioner filed a habeas petition in the 9 trial court. He alleges that he raised therein the three claims alleged in the instant 10 Petition. The trial court petition was denied on or about July 25, 2019. 11 Petitioner admits that he did not pursue any further state court direct or 12 collateral relief and that none of the claims alleged in the Petition have been 13 presented to the California Supreme Court. [Petition at 8, 10.] The state court 14 dockets confirm that, with respect to his present conviction, Petitioner has not filed 15 anything in the California Court of Appeal other than as indicated above and has 16 filed nothing in the California Supreme Court. 17 18 PETITIONER’S HABEAS CLAIMS 19 Ground One: Pursuant to Gerstein v. Pugh, 420 U.S. 103 (1975), Petitioner’s 20 rights under the Fourth Amendment were violated, because he was arrested without 21 an arrest warrant. 22 Ground Two: Petitioner’s right to due process was violated because no arrest 23 warrant issued or was filed. 24 Ground Three: Appellate counsel provided ineffective assistance by failing to 25 raise the above claims in Petitioner’s direct appeal. Also, the State attorney failed to 26 27 2 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has reviewed the dockets available electronically for the Los Angeles County Superior Court, the California Court of 28 Appeal, and the California Supreme Court, in addition to reviewing the documents included in the Petition. 1 2 filed by his appellate counsel. 3 4 THE PETITION IS UNEXHAUSTED 5 Petitioner alleges that he stopped pursuing his claims at the trial court level 6 after he received a procedural denial of his trial court habeas petition, which the 7 Court’s review has confirmed. Federal courts may not grant habeas relief to a 8 person held in state custody unless the petitioner has exhausted his available state 9 court remedies as to each of the issues presented. 28 U.S.C. § 2254(b)(1)(A); Rose 10 v. Lundy, 455 U.S. 509, 518 (1982); Fields v. Waddington, 401 F.3d 1018, 1020 (9th 11 Cir. 2005). To satisfy the exhaustion requirement, a state prisoner must “fairly 12 present” his federal claim to the state courts, that is, give them a fair opportunity to 13 consider and correct violations of the prisoner’s federal rights. See Duncan v. 14 Henry, 513 U.S. 364, 365 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 15 (9th Cir. 2003) (en banc). A state prisoner seeking relief with respect to a California 16 conviction is required to “fairly present” his federal claims to the California 17 Supreme Court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (a state prisoner must 18 fairly present his claim to a state supreme court having the power of discretionary 19 review). 20 Petitioner, admittedly, has failed to present his claims to the California 21 Supreme Court. As a result, the Petition is fully unexhausted. Petitioner alleges 22 that, because the trial court imposed a procedural default, its decision was “final” 23 and he therefore did not need to pursue further relief. [Petition at 8.] He is 24 mistaken, and as a result, his three claims are unexhausted. 25 When a habeas petition is fully unexhausted, as is the case here, the petitioner 26 has two options. He can voluntarily dismiss his petition without prejudice, so that 27 he may pursue exhaustion in the state courts and then return to federal court once his 28 1 2 pursues exhaustion in the state courts, pursuant to the Rhines stay procedure. See 3 Rhines v. Weber, 544 U.S. 269 (2005) (authorizing stays of “mixed” petitions); and 4 Mena v. Long, 813 F.3d 907 (9th Cir. 2016) (finding the Rhines stay procedure 5 applicable to fully unexhausted petitions). To obtain a Rhines stay, a petitioner must 6 show: (1) “good cause” for the failure to exhaust the claims at issue; (2) that the 7 unexhausted claims are “potentially meritorious”; and (3) and that the petitioner has 8 not engaged in “intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 277-78. 9 The Supreme Court has cautioned that a Rhines stay should be afforded “only in 10 limited circumstances.” Id. at 277. 11 As set forth below, the Court has directed Petitioner to file a Response to this 12 Order to Show Cause. In his Response, Petitioner shall: state whether he believes 13 the Petition is exhausted and, if so, explain why; or state whether he concedes that 14 the Petition is unexhausted and, if so, indicate clearly which of the above two 15 options he wishes to exercise. Petitioner is cautioned that, at present, the Court 16 would be disinclined to grant a Rhines stay given that, as discussed below, the 17 claims alleged in the Petition fail on their faces, which would render element (2) 18 above unsatisfied. In addition, there is no apparent basis in the record for finding 19 that there was good cause for Petitioner’s failure to exhaust his claims, thus 20 rendering element (1) unsatisfied as well. Nonetheless, if Petitioner wishes to seek a 21 stay of this action and believes that he can satisfy the Rhines standard, he may 22 attempt to do so in his Response and the Court will consider his arguments 23 carefully. 24 25 THE PETITION FAILS ON ITS FACE 26 Even if the Petition were exhausted or could be rendered exhausted if a stay 27

28 3 Any new federal petition will be subject to the statute of limitations. 1 2 are not cognizable and Ground Three plainly fails on its face. 3 4 Grounds One and Two: 5 The first and second claims of the Petition rest on the premise that Petitioner’s 6 Fourth Amendment and due process rights were violated, because he was arrested 7 without an arrest warrant having been issued. Thus, Petitioner complains of an 8 illegal “seizure” under the Fourth Amendment. Ground Two is not cognizable, 9 because the Due Process Clause is not an appropriate basis for Plaintiff’s illegal 10 seizure claim. “Where a particular Amendment provides an explicit textual source 11 of constitutional protection against a particular sort of government behavior, that 12 Amendment, not the more generalized notion of substantive due process, must be 13 the guide for analyzing such a claim.” Albright v. Oliver, 510 U.S. 266, 273 (1994). 14 The basis for Grounds One and Two is a seizure that allegedly was illegal under the 15 Fourth Amendment. Plaintiff has not properly stated a Fourteenth Amendment due 16 process claim, because any such claim is indistinguishable from the Fourth 17 Amendment right he asserts through Ground One. Accordingly, the only possible 18 federal habeas issue that can be considered based on Petitioner’s allegation of a 19 warrantless arrest is one arising under the Fourth Amendment. Ground Two, thus, 20 must be dismissed under Rule 4. 21 Petitioner’s Ground One Fourth Amendment claim, however, is not 22 cognizable, because it is barred by the Stone v. Powell doctrine. In Stone v. Powell, 23 428 U.S. 465 (1975), the Supreme Court held that “where the State has provided an 24 opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner 25 may not be granted federal habeas corpus relief on the ground that evidence 26 obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 27 494. Under Stone, “[a] Fourth Amendment claim is not cognizable in federal habeas 28 1 2 state court.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). 3 To receive federal habeas consideration of a claim that the Fourth 4 Amendment has been violated by an illegal seizure and/or search, a petitioner bears 5 the burden of demonstrating that the state courts did not provide him with a full and 6 fair hearing. See Woolery v. Arave, 8 F.3d 1325, 1327-28 (9th Cir. 1993). In 7 determining this issue, “[t]he relevant inquiry is whether petitioner had the 8 opportunity to litigate his claim, not whether he did in fact do so or even whether the 9 claim was correctly decided.” Ortiz-Sandoval, 81 F.3d at 899 (emphasis added); see 10 also Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (as long as the petitioner 11 “had an opportunity in state court for ‘full and fair litigation’ of his fourth 12 amendment claim,” habeas relief is foreclosed on his claim that an unconstitutional 13 search and seizure occurred). California provides criminal defendants with a full and 14 fair opportunity to litigate their Fourth Amendment claims through the remedy 15 provided by California Penal Code § 1538.5. See Gordon, 895 F.2d at 613. More 16 importantly here, Petitioner expressly alleges that he moved to dismiss his criminal 17 case based on his present Fourth Amendment argument, i.e., that he had been 18 arrested without a warrant, and that the trial court judge denied the motion in or 19 about April 2018. [Petition at 7.] 20 Petitioner thus had a full and fair opportunity to litigate his Fourth 21 Amendment claim. Any disagreement that Petitioner has with the state court’s 22 decision on his Fourth Amendment claim does not make his claim cognizable on 23 habeas review. See Ortiz-Sandoval, 81 F.3d at 899; see also Siripongs v. Calderon, 24 35 F.3d 1308, 1321 (9th Cir. 1994) (petitioner’s argument challenging the validity 25 of his search “goes not to the fullness and fairness of the opportunity to litigate the 26 claim, but to the correctness of the state court resolution, an issue which Stone v. 27 Powell makes irrelevant”). Because Petitioner had a fair opportunity to and did, in 28 fact, litigate his Fourth Amendment claim in the trial court, Ground One is barred in 1 2 912 F.2d 1176, 1178 (9th Cir. 1990) (finding Fourth Amendment warrantless arrest 3 claim raised in federal habeas action to be barred by Stone v. Powell); Myers v. 4 Rhay, 577 F.2d 504, 507-09 (9th Cir. 1978) (claim that arrest was illegal because 5 warrant was defective, and thus the petitioner’s statements made incident to the 6 arrest should be excluded, held to be barred by Stone v. Powell); Sfara v. Herndon, 7 No. CV 09-3905-TJH (JEM), 2012 WL 2490, at *6 (C.D. Cal. April 18, 2012) 8 (Fourth Amendment claim of undue delay between warrantless arrest and judicial 9 probable cause determination held to be barred by Stone v. Powell), adopted by 10 2012 WL 1986090 (June 4, 2012).4 11 Accordingly, under Rule 4, the summary dismissal of Grounds One and Two 12 is required. 13 14 Ground Three: 15 In his third claim, Petitioner asserts that his appellate counsel provided 16 ineffective assistance by failing to raise Grounds One and Two on direct appeal.5 It 17 is axiomatic that an appellate attorney does not provide deficient performance, 18 within the meaning of the Sixth Amendment, by declining to raise weak or meritless 19 claims on appeal. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983) (the Sixth 20 Amendment does not require that appellate counsel raise every colorable or non- 21

22 4 In addition, contrary to Petitioner’s belief, the Fourth Amendment does not prohibit arrests without a warrant, as long as there is a prompt judicial determination of probable cause thereafter. 23 Gerstein, 420 U.S. at 113-14, 125; see also County of Riverside v. McLaughlin, 500 U.S. 44, 56 24 (1991) (a judicial determination of probable cause within 48 hours of arrest generally complies with Gerstein’s promptness requirement). Thus, even if Ground One were cognizable, it appears 25 to fail on the merits on its face.

26 5 Petitioner also complains that the attorney for the State failed to provide him with advice 27 that he could file a supplement to the Wende brief filed by Petitioner’s appellate counsel. This allegation does not come close to stating a federal constitutional violation, as the State’s attorney 28 had no obligation to so advise Petitioner. Thus, this aspect of Ground Three plainly fails on its face. 1 2 in order to focus on stronger ones); Morrison v. Estelle, 981 F.2d 425, 429 (9th Cir. 3 1992) (appellate counsel’s failure to raise an issue on appeal does not constitute 4 ineffective assistance if no constitutional violation has been shown, and thus, 5 counsel had no reasonable likelihood of success in arguing the issue); Boag v. 6 Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (failure to raise meritless argument on 7 appeal does not constitute ineffective assistance of counsel). In addition, an 8 ineffective assistance of appellate counsel claim fails the Sixth Amendment’s 9 prejudice requirement unless the petitioner can show that the omitted claims would 10 have been successful, namely, that, “but for” his appellate counsel’s omission of 11 these claims, there is a “reasonable probability” Petitioner “would have prevailed on 12 his appeal.” Smith v. Robbins, 528 U.S. 259, 285 (2000); Miller v. Keeney, 882 F.2d 13 1428, 1434 (9th Cir. 1989) (the appropriate inquiry is whether a specific argument 14 would have resulted in a “reasonable probability of reversal”). 15 As noted above, Ground Two is not cognizable, because an asserted Fourth 16 Amendment violation cannot be raised as a due process-based claim. As further 17 noted, Petitioner’s apparent belief that an arrest without a warrant is barred by the 18 Fourth Amendment is simply incorrect under Gerstein and Supreme Court 19 precedent. Neither prong of a Sixth Amendment violation – deficient performance 20 and/or prejudice – can be found based on appellate counsel’s failure to raise 21 Grounds One and Two on direct appeal. Accordingly, Ground Three fails to present 22 any basis for federal habeas relief and therefore, under Rule 4, should be dismissed 23 summarily. 24 * * * * * 25 As noted earlier, Rule 4 requires summary dismissal of a Section 2254 26 petition “[i]f it plainly appears from the petition and any attached exhibits that the 27 petitioner is not entitled to relief in the district court.” For the foregoing reasons, 28 summary dismissal of this action appears required here. 1 Accordingly, Petitioner is ORDERED TO SHOW CAUSE why this action 2 || should not be dismissed on the grounds of unexhaustion and/or noncognizability. 3 || By no later than June 8, 2020, Petitioner shall file a Response to this Order To 4 || Show Cause addressing these issues as follows: (1) if Petitioner concedes that the 5 || Petition is unexhausted, he shall state so clearly and advise which of his two options 6 || he elects, but if Petitioner disputes that the Petition is unexhausted, he must 7 || demonstrate how it is exhausted; and (2) if Petitioner concedes that his claims are 8 || not cognizable, he shall state so clearly, but if Petitioner contends that the claims are 9 || cognizable, he must explain why. 10 Petitioner is explicitly cautioned that his failure to comply with this 11 || Order will be deemed to constitute a concession that this action may be 12 || dismissed summarily on the grounds of unexhaustion and/or the 13 || noncognizability of his claims. 14 IT IS SO ORDERED. 15 16 |} DATED: April 24, 2020 17 18 GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

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