Miguel Angel Padilla v. M McDonald

Filing 24

ORDER TO SHOW CAUSE RE POSSIBLE DISMISSAL OF: "MIXED" PETITION; AND NONCOGNIZABLE CLAIMS by Magistrate Judge Margaret A. Nagle. Response to Order to Show Cause due by 8/24/2012. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MIGUEL ANGEL PADILLA,

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Petitioner,

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v.

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M. McDONALD,

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Respondent.

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NO. CV 11-4579-MMM (MAN)
ORDER TO SHOW CAUSE RE POSSIBLE
DISMISSAL OF: “MIXED” PETITION;
AND NONCOGNIZABLE CLAIMS

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On May 27, 2011, Petitioner filed a habeas petition pursuant to

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28 U.S.C. § 2254 (“Petition”).

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it was “mixed,” because Grounds Two through Five were not raised in

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Petitioner’s direct appeal and he had not yet sought habeas relief in

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the California Supreme Court.

On its face, the Petition showed that

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On June 3, 2011, the Court issued an Order advising Petitioner

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of his options in view of the “mixed” nature of the Petition (“June

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3 Order”).

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options specified in the Order by no later than July 8, 2011.

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The June 3 Order directed Petitioner to elect one of the

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On July 1, 2011, the Court granted Petitioner’s request for an

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extension of time to respond to the June 3 Order.

On July 20, 2011,

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Petitioner filed his Response to the July 3 Order.

In his Response,

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Petitioner asked the Court to dismiss Grounds Two through Five of the

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Petition without prejudice and to invoke the Kelly stay procedure.1

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On July 25, 2011, the Court issued an Order that granted

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Petitioner’s request (“July 25 Order”).

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Court concluded that a Rhines stay2 would not be appropriate in this

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action, because there was no good cause for Petitioner’s failure to

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exhaust Grounds Two through Five before seeking federal habeas relief.

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The Court:

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Grounds Two through Five of the Petition without prejudice; ordered

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the Petition amended to delete these four dismissed claims; stayed

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this action, pursuant to the Kelly stay procedure, for the purpose of

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allowing Petitioner to exhaust Grounds Two through Five through the

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filing

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established deadlines by which Petitioner was required to file status

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reports; and directed that, should the California Supreme Court deny

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habeas relief, Petitioner must file a motion to lift the stay of this

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action and request leave to amend the Petition to re-plead Grounds Two

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through Five.

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court habeas petition and timely status reports.

of

In the July 25 Order, the

granted Petitioner’s request to voluntarily dismiss

a

habeas

petition

in

the

California

Supreme

Court;

Thereafter, Petitioner filed a copy of his state high

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See, e.g., King v. Ryan, 564 F.3d 1133 (9th Cir. 2009)
(describing Kelly stay procedure available to habeas litigants in the
Ninth Circuit).
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See Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528 (2005).
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On February 13, 2012, Petitioner notified the Court that the

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California Supreme Court denied habeas relief on January 18, 2012

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(Case No. S195015), and he moved to:

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imposed on July 25, 2011; and for leave to amend to re-plead Grounds

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Two through Five in the existing Petition.

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Court granted the motion, lifted the stay of this action, and ordered

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the Petition served on counsel for Respondent.

lift the stay of this action

On February 15, 2012, the

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On June 28, 2012, Respondent filed a motion to dismiss the

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Petition based on the grounds that: (1) the Petition remains “mixed,”

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because Ground Five is unexhausted; and (2) Grounds Two and Four are

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not cognizable (“Motion”).

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relevant portions of the state record (“Lodg.”).

With the Motion, Respondent lodged the

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The Court has reviewed the Petition, the Motion, and the state

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record.

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Motion have merit and that dismissal of this action in whole or in

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part is warranted, based on the following reasons.

It appears to the Court that both grounds raised in the

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I.

Ground Two And Four Are Not Cognizable

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Ground Two of the Petition asserts that a search and seizure that

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led to Petitioner’s arrest was “illegal,” because the police officer

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lacked probable cause.

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asserts that the search warrant lacked probable cause, because it was

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based

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construed, both claims assert that Petitioner’s Fourth Amendment

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rights were violated by the search that preceded his conviction.

on

the

(Petition at 5.)

affiant’s

opinion.

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Ground Four of the Petition

(Petition

at

6.)

Liberally

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“[W]here the State has provided an opportunity for full and fair

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litigation of a Fourth Amendment claim, a state prisoner may not be

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granted federal habeas corpus relief on the ground that evidence

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obtained in an unconstitutional search or seizure was introduced at

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his trial.”

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(1975).

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in federal habeas proceedings if a petitioner has had a full and fair

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opportunity to litigate the claim in state court.”

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Gomez, 81 F.3d 891, 899 (9th Cir. 1996); see also Moormann v. Schriro,

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426 F.3d 1044, 1053 (9th Cir. 2005); Villafuerte v. Stewart, 111 F.3d

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616, 627 (9th Cir. 1997).

Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 3052

Under Stone, “[a] Fourth Amendment claim is not cognizable

Ortiz-Sandoval v.

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A petitioner may receive federal habeas consideration of a Fourth

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Amendment claim only if he demonstrates that the state courts did not

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provide him with a full and fair hearing with respect to the claim.

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See Woolery v. Arave, 8 F.3d 1325, 1327-28 (9th Cir. 1993). In

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determining whether a habeas petitioner has had a full and fair

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opportunity to litigate his Fourth Amendment claim in state court,

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“[t]he relevant inquiry is whether petitioner had the opportunity to

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litigate his claim, not whether he did in fact do so or even whether

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the claim was correctly decided.”

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(emphasis added); see also Gordon v. Duran, 895 F.2d 610, 613 (9th

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Cir. 1990)(as long as the petitioner “had an opportunity in state

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court for ‘full and fair litigation’ of his fourth amendment claim,”

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habeas relief is foreclosed on his claim that an unconstitutional

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search and seizure occurred). California provides criminal defendants

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with a full and fair opportunity to litigate their Fourth Amendment

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claims through the California Penal Code § 1538.5 remedy, which
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Ortiz-Sandoval, 81 F.3d at 899

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establishes a specific mechanism by which defendants may seek the

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suppression of evidence on the ground that it was obtained through

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unconstitutional means.

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403, 408 (9th Cir. 1983).

See id.; see also Locks v. Summer, 703 F.2d

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The state record shows that Petitioner moved to unseal and quash

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the search warrant that is the subject of Grounds Two and Four, and

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his motion was denied.

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thus, availed himself of the mechanism provided to him by California

(Lodg. No. 1 at 105-11, 162.)3

Petitioner,

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law.

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him with a full and fair opportunity to litigate his Fourth Amendment

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claims; the fact that he did not prevail when he exercised that remedy

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is irrelevant.

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petitioner had a “full and fair opportunity” to litigate his claims

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does not depend on whether his claims were correctly decided by the

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state courts).

Petitioner’s utilization of the Section 1538.5 remedy provided

See Ortiz-Sandoval, 81 F.3d at 899 (a finding that a

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Thus, pursuant to the Stone doctrine, Grounds Two and Four of the

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Petition are not cognizable and are barred from federal habeas review.

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II.

Ground Five Is Unexhausted.

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Ground

Five

of

the

Petition

asserts

that

Petitioner

was

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“wrongfully convicted” of a gang enhancement found true by the jury,

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because the prosecutor’s arguments in support of the enhancement were

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Petitioner moved to quash the warrant pursuant to People v.
Hobbs, 7 Cal. 4th 948 (1994). (Lodg. No. 1 at 109.) Hobbs stemmed
from an unsuccessful motion to quash a search warrant pursuant to
California Penal Code § 1538.5. See id. at 955.
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based on “stale and baseless information” that was prejudicial.

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(Petition at 6.)

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a due process claim, i.e., that the prosecutor advanced a false and/or

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improper argument to secure a true finding on the gang enhancement.

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No such claim, however, has been presented to the California Supreme

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Court.

Liberally construed, Ground Five appears to assert

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In his petition for review, Petitioner asserted only the claim

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now alleged as Ground One in the Petition. (Lodg. No. 2.) Ground One

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of the Petition does allege prosecutorial misconduct during closing

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argument; however, the claim rests only on the prosecutor’s argument

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related to the substantive offense of which Petitioner was convicted.

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Specifically,

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proffered her personal opinion that Petitioner was a drug dealer based

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on his use of the word “keys.”

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petition for review did not raise the claim now alleged in Ground

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Five.

Petitioner

argued

that

the

prosecutor

improperly

(See Lodg. No. 2, passim.)

The

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In his habeas petition filed with the California Supreme Court,

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Petitioner raised three grounds for relief.

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habeas petition raised the claim now asserted as Ground Three of the

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instant Petition.

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claim not alleged in the instant Petition.

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habeas petition raised a Fourth Amendment claim that appears to

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encompass the same claims intended to be asserted through Grounds Two

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and Four of the instant Petition.

Ground One of the state

Ground Two of the state habeas petition raised a
Ground Three of the state

The state habeas petition did not

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allege the claim now alleged as Ground Five in the instant Petition.4

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(See Lodg. No. 10. passim.)

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and the Petition remains “mixed.”

Thus, Ground Five remains unexhausted,

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The Court has already stayed this action once so that Petitioner

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could exhaust Ground Five.

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Accordingly, there is no legitimate basis for staying this action a

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second time.

His failure to do so is inexcusable.

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III. Dismissal Of The Petition, In Whole Or In Part, Appears To
Be Required.

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With respect to the Court’s conclusion in Section I that Grounds

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Two and Four of the Petition are not cognizable, Petitioner is ORDERED

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TO SHOW CAUSE why these two claims should not be dismissed.

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later than August 24, 2012, Petitioner shall file a Response to this

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Order To Show Cause in which he advises clearly whether he:

By no

(1)

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Respondent observes that Ground Five alleges that the
prosecutor relied on “stale and baseless information” in support of
the gang enhancement, and in the Fourth Amendment claim alleged in the
state petition, Petitioner complained that the search warrant also was
predicated on “stale information.” (See Lodg. No. 10 at 4cc, 4jj4kk.) A claim that the search warrant was invalid because it rested
on stale information is entirely different -- both factually and
legally –- from a claim that the prosecutor committed misconduct at
trial by arguing stale information. The exhaustion of the former
claim did not exhaust the latter claim. See Rose v. Palmateer, 395
F.3d 1108, 1112 (9th Cir. 2005)(holding that a Fifth Amendment claim
was related to a Sixth Amendment ineffective assistance of appellate
counsel claim only insofar as the Sixth Amendment claim was premised
on counsel’s failure to raise the substance of the Fifth Amendment
claim on state appeal, because “they are distinct claims with separate
elements of proof, and each claim should have been separately and
specifically presented to the state courts”; thus, even though the
Sixth Amendment claim was exhausted, a claim based on the underlying
Fifth Amendment violation was not).
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concedes that Grounds Two and Four are not cognizable and agrees that

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the two claims should be dismissed; or (2) contends that Grounds Two

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and Four are cognizable.

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Four are cognizable, then he must explain, in his Response, why these

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two claims may be considered on their merits.

If Petitioner contends that Grounds Two and

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With respect to the Court’s conclusion in Section II that Ground

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Five of the Petition is unexhausted, by no later than August 24, 2012,

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Petitioner shall file a Response to this Order To Show Cause in which

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he advises clearly whether he:

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unexhausted; or (2) contends that Ground Five was exhausted through

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his California Supreme Court habeas petition. If Petitioner contends

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that Ground Five is exhausted, then he must explain, in his Response,

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how the claim was fairly presented in his California Supreme Court

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habeas

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unexhausted, in his Response, he must clearly select one of the

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following two options: (1) Petitioner may voluntarily dismiss Ground

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Five; or (2) Petitioner may voluntarily dismiss the Petition as a

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whole, and thus, this action will be dismissed without prejudice.

petition.

If

(1) concedes that Ground Five is

Petitioner

concedes

that

Ground

Five

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Petitioner is cautioned that a failure to timely

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respond to this Order To Show Cause will be deemed to

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constitute a concession that:

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cognizable; and Ground Five is unexhausted.

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Petitioner fails to timely respond to this Order To Show

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Cause, the Petition will remain “mixed,” and thus, the

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dismissal

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required.

of

this

action,

Grounds Two and Four are not

without

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Moreover, if

prejudice,

will

be

is

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Once the Court receives Petitioner’s Response, the Court will

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take

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Respondent’s pending

further

appropriate

action,

including

with

respect

Motion.

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IT IS SO ORDERED.

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DATED: July 20, 2012.

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MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

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to