United States District Court, C.D. California
ORDER DISMISSING PETITION WITH PREJUDICE AND DENYING CERTIFICATE OF APPEALABIILITY
MARGARET A. NAGLE, Magistrate Judge.
On February 10, 2015, a 28 U.S.C. § 2254 habeas petition submitted by Petitioner was filed in this Court ("Petition"). The Petition alleges that: Petitioner was convicted and sentenced on April 17, 2014, in Los Angeles Superior Court Case No. PA079571, pursuant to a nolo contendere plea; he received a two-year sentence; and he has been released from incarceration but is on parole. Petitioner alleges that he appealed his conviction through an untimely filing submitted to the trial court, which was rejected. (Petition at 2-3.) He alleges that, thereafter, he sought habeas relief in the trial court, the California Court of Appeal, and the California Supreme Court, and he raised his present two claims in each of those proceedings. (Petition at 3-5.)
The Petition presents two claims. In Ground One, Petitioner alleges that he was subjected to an unreasonable search and seizure, because the police: stopped his car without probable cause; illegally detained him and searched his car without a warrant; and used stolen property found in the car to charge and convict him. (Petition at 5.) In Ground Two, Petitioner alleges that his counsel provided ineffective assistance, because counsel failed to file a motion to suppress the evidence obtained as a result of this wrongful search and seizure. (Petition at 5-6.)
Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has reviewed, and takes judicial notice of, the electronic dockets for the California Court of Appeal and the California Supreme Court. Those judicially-noticed records show that Petitioner filed: a habeas petition in the California Court of Appeal (Case No. B259806), which was denied summarily on November 19, 2014; and a petition for review in the California Supreme Court (Case No. S222810), which was denied summarily on January 14, 2015. Petitioner alleges that he raised Grounds One and Two in these proceedings. (Petition at 4.) Given this allegation, and the denial of Petitioner's claims on their merits,  the Court will assume that Grounds One and Two are exhausted.
The Petition does not name a proper Respondent. As Petitioner is on parole, the appropriate Respondent is Petitioner's parole officer. See Advisory Committee Notes to Rule 2 of the Rules Governing Section 2254 Cases; see also Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). Although this is a defect that could be rectified with amendment, the Petition suffers from two fundamental defects that, for the reasons discussed below, cannot be cured by amendment.
GROUND ONE IS NOT COGNIZABLE
Petitioner raises a Fourth Amendment claim through Ground One, i.e., that he was subjected to an unreasonable search and seizure, which led to his conviction. This claim is not cognizable on federal habeas review.
In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1975), the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494, 96 S.Ct. at 3052. Under Stone, "[a] Fourth Amendment claim is not cognizable in federal habeas proceedings if a petitioner has had a full and fair opportunity to litigate the claim in state court." Ortiz-Sandoval, 81 F.3d at 899; see also Villafuerte v. Stewart, 111 F.3d 616, 627 (9th Cir. 1997).
To receive federal habeas consideration of a claim that evidence should have been suppressed, a petitioner bears the burden of demonstrating that the state courts did not provide him with a full and fair hearing. See Woolery v. Arave, 8 F.3d 1325, 1327-28 (9th Cir. 1993). In determining whether a habeas petitioner has had a full and fair opportunity to litigate his Fourth Amendment claim in state court, "[t]he relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval, 81 F.3d at 899 (emphasis added); see also Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (as long as the petitioner "had an opportunity in state court for full and fair litigation' of his fourth amendment claim, " habeas relief is foreclosed on his claim that an unconstitutional search and seizure occurred). California provides criminal defendants with a full and fair opportunity to litigate their Fourth Amendment claims through the motion to suppress remedy provided by California Penal Code § 1538.5, which establishes a specific mechanism for seeking the suppression of evidence on the ground that it was obtained through unconstitutional means. See id.; see also Locks v. Summer, 703 F.2d 403, 408 (9th Cir. 1983).
Petitioner alleges, in Ground Two, that his counsel failed to file a suppression motion. However, Petitioner's claim that his trial counsel provided ineffective assistance by failing to file a motion to suppress is distinct from petitioner's substantive Fourth Amendment claim raised through Ground One. See Kimmelman v. Morrison, 477 U.S. 365, 374-75, 106 S.Ct. 2574, 2582-83 (1986). For purposes of Petitioner's first claim, he had a full and fair opportunity to litigate any Fourth Amendment claim in the state courts, because even if, as Petitioner claims, his counsel declined to file a suppression motion, the Section 1538.5 remedy was available to Petitioner. In any event, Petitioner did raise his Fourth Amendment claim in the California Court of Appeal and the California Supreme Court, and both state courts considered the claim and denied it on its merits, which compels the conclusion that the Stone doctrine applies. See Locks, 703 F.2d at 408 (when petitioner litigated a search and seizure issue in the trial court and the appellate court, and also raised the issue before the California and United States Supreme Courts, petitioner received a "full and fair consideration of his Fourth Amendment claim"); see also Terronova v. Kincheloe, 912 F.2d 1176, 1178-79 (9th Cir. 1990) (the "extent to which [Fourth Amendment] claims were briefed before and considered by the state trial and appellate courts" is a consideration in determining whether petitioner had the opportunity for full and fair litigation of those claims). Under these circumstances, Petitioner's Fourth Amendment claim is barred in this federal habeas proceeding even though it was not actually litigated at trial through a suppression motion; whether or not Petitioner actually presented a Fourth Amendment challenge in the trial court is inconsequential. See Ortiz-Sandoval, 81 F.3d at 899.
Pursuant to the Stone doctrine, Ground One of the Petition is not cognizable. As a result, Ground One is barred from federal habeas review and must be dismissed with prejudice.
GROUND TWO IS NOT COGNIZABLE
Ground Two raises a Sixth Amendment challenge based upon counsel's failure to file a suppression motion attacking the vehicle stop and search described earlier. Ground Two is not barred by the Stone doctrine, because its restriction on federal habeas review of Fourth Amendment claims is inapplicable to Sixth Amendment claims. See Kimmelman, 477 U.S. at 374-75, 106 S.Ct. at 2582-83. Petitioner's second claim, however, is barred for a distinct reason.
The Supreme Court has made clear that when a defendant was convicted pursuant to a guilty plea and later seeks collateral relief based on asserted constitutional errors that occurred before that plea was entered, he ...