Williams v. Filson

Filing 36

ORDER signed by Chief District Judge Kimberly J. Mueller on 5/23/2022 ADOPTING 30 Findings and Recommendations in full, and DENYING 1 Application for a Writ of Habeas Corpus. The court DECLINES to issue the certificate of appealability. CASE CLOSED. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARCELL WILLIAMS,

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No. 2:18-cv-1305 KJM KJN P

Petitioner,
v.

ORDER

TIMOTHY FILSON,
Respondent.

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Petitioner, a state prisoner proceeding pro se, filed this application for a writ of habeas

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corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as

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provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 3, 2021, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. After receiving extensions

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of time, petitioner filed objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, the court finds the

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findings and recommendations to be supported by the record and by the proper analysis. The

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court writes separately to explain why it does not sustain petitioner’s objections.

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Petitioner argues his defense attorney provided ineffective assistance because he did not
move to suppress evidence obtained from a cell phone seized and searched without a warrant.
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See, e.g., Objections at 4 (“[If] defense counsel had filed a motion to suppress the photos taken

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from cell phone due to a 4th and 5th Amendment violation due to the fact the search of the cell

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phone was unreasonable the state would not ha[ve] been allowed to introduce the photos as

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evidence to [the] jury. . . . By filing a motion in limine and not the motion to suppress the state

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was still allowed to introduce the illegally obtained cell phone photos.”). No evidence shows

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petitioner exhausted this claim before filing a federal petition for a writ of habeas corpus, so he

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cannot obtain federal habeas relief. See 28 U.S.C. § 2254(b)(1). The unlawful-search theory he

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pursues in his objections is also absent from the petitions he has filed in this court. See generally,

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e.g., Second Am. Pet., ECF No. 15.

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Even if petitioner had exhausted and then asserted an ineffective assistance claim based on

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an unlawful-search theory, it would not have succeeded. To obtain relief, petitioner would need

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to show, among other things, that his trial attorney’s assistance “fell below an objective standard

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of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Petitioner’s trial

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counsel pursued the reasonable position that the government could not connect the seized phone

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to petitioner. See, e.g., Trial Tr. (Feb. 19, 2015), Lodged Document No. 3, ECF No. 23-3 (“The

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phone is not admissible and he did not have a cell phone.”). Counsel could not have advanced

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this theory and simultaneously moved to suppress the phone’s contents as the fruits of an

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unconstitutional search. See, e.g., United States v. Padilla, 111 F.3d 685, 687 (9th Cir. 1997)

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(“[A defendant] must show that [his] own expectations of privacy or property interests were

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violated by the challenged police conduct in order to have standing to contest an unreasonable

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search.” (citation and quotation marks omitted)).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed September 3, 2021, are adopted in full;

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2. Petitioner’s application for a writ of habeas corpus is denied;

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4. The clerk of court is directed to close this case; and

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3. The court declines to issue the certificate of appealability referenced in 28 U.S.C.

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§ 2253.

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DATED: May 23, 2022.