(HC) Leonard v. Cueda

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA THOMAS FREDERICK LEONARD, No. 2:23-CV-2693-DAD-DMC-P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS D. CUEDA, 15 Respondent.

17 Petitioner, a prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is Respondent's unopposed motion to dismiss. See ECF No. 13. Respondent argues that this action must be dismissed because all claims raised are unexhausted. See id. Respondent further argues that Petitioner's Fourth Amendment claim is not cognizable. See id. Respondent has lodged relevant state court records in support of the motion to dismiss. See ECF No. 14.

24 I. BACKGROUND 25 This action proceeds on Petitioner's second amended petition. See ECF No. 8.

26 Petitioner was convicted in the Sacramento County Superior Court of numerous counts of lewd acts upon a child. See ECF No. 14-1 (abstract of felony judgment). On direct appeal, Petitioner raised the following claims: (1) the evidence was insufficient to establish multiple instances of lewd conduct as to victim A.; (2) the trial court erred in excluding evidence that victim A. had previously accused her cousin of molesting her; (3) trial court error and ineffective assistance of counsel as to testimony from Dr. Washington; (4) the trial court erred in allowing hearsay evidence; (5) ineffective assistance of counsel regarding the prosecutor's closing arguments; (6) the trial court erred in declining to stay punishment as to count one; and (7) cumulative error. See ECF NO. 14-2 (appellate court unpublished decision). The California Court of Appeal affirmed the conviction and remanded for resentencing. See id. The California Supreme Court denied review without comment or citation. See ECF No. 14-4. On remand, Petitioner was resentenced in the Sacramento County Superior Court on January 27, 2023. See ECF No. 14-5.

10 In the operative second amended petition, Petitioner raises the following claims: (1) Petitioner's confession was obtained through coercion; (2) the conviction was obtained in violation of Petitioner's Fifth Amendment rights against self-incrimination; (3) the prosecutor failed to disclose exculpatory evidence; and (4) evidence was obtained in violation of Petitioner's Fourth Amendment rights. See ECF No. 8.

16 II. DISCUSSION 17 Respondent argues: (1) the entire petition must be dismissed because none of the claims raised has been exhausted in state court; and (2) Petitioner's Fourth Amendment claim is not cognizable. See ECF No. 13. The Court agrees.

20 A. Exhaustion 21 Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required before claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy, 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 336 F.3d 839 (9th Cir. 2003). The exhaustion doctrine is based on a policy of federal and state comity, designed to give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518.

27 “A petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of the claim . . .; or (2) by showing that at the time the petitioner filed the habeas petition in federal court no state remedies are available to the petitioner and the petitioner has not deliberately by-passed the state remedies.” Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted). Exhaustion is not a jurisdictional requirement, and the court may raise the issue sua sponte. See Simmons v. Blodgett, 110 F.3d 39, 41 (9th Cir. 1997). Unless the petitioner can show that a stay of the federal petition to allow for state court exhaustion proceedings is warranted, a petition asserting unexhausted claims should be dismissed. See Mena v. Long, 813 F.3d 907 (9th Cir. 2016); Wooten v. Kirkland, 540 F.3d 1019, 1026 (9th Cir. 2008) (citing Rhines v. Weber, 544 U.S. at 278); Jefferson v. Budge, 419 F.3d 9 1013, 1016 (9th Cir. 2005).

10 Here, it is clear that Petitioner failed to raise any of the claims currently asserted in the second amended petition in the California Supreme Court. Because Petitioner has not demonstrated that a stay is warranted, and indeed has not opposed Respondent's motion at all, the Court finds that dismissal is appropriate.

14 B. Fourth Amendment Claims 15 In Stone v. Powell, the United States 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.” 428 U.S. 465, 494 (1976). Thus, a Fourth Amendment claim can only be litigated on federal habeas where petitioner demonstrates that the state did not provide an opportunity for full and fair litigation of the claim; it is immaterial whether the petitioner actually litigated the Fourth Amendment claim. Gordan v. Duran, 895 F.2d 610, 613 (9th Cir. 1990). The issue before this Court is whether Petitioner had a full and fair opportunity in the state courts to litigate his Fourth Amendment claim, not whether Petitioner actually litigated those claims, nor whether the state courts correctly disposed of the Fourth Amendment issues tendered to them. See id.; see also Siripongs v. Calderon, 35 F.3d 26 1308 (9th Cir. 1994).

27 / / / / / / ] In his fourth claim, Petitioner asserts evidence used against him was obtained from | an illegal search and seizure, in violation of his rights under the Fourth Amendment. According || to Respondent: 4 .. California’s Penal Code section 1538.5 suppression procedure provides the opportunity so Fourth Amendment claims are unavailable on 5 federal habeas whether or not the statutory procedure is utilized. Ortiz- Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996); Stephens v. Attorney 6 General, California, 23 F.3d 248, 249 (9th Cir. 1994); Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990). Because Petitioner had such an 7 opportunity, his Fourth Amendment claim is barred and ground four g should be dismissed.

9 ECF No. 18, pg. 3.

10 The Court agrees. Because Petitioner had the opportunity to raise his Fourth || Amendment claim in the context of a suppression proceeding under California Penal Code § | 1538.5, the claim is not cognizable regardless of whether Petitioner utilized this process.

14 Il. CONCLUSION 15 Based on the foregoing, the undersigned recommends that Respondent's unopposed || motion to dismiss, ECF No. 13, be GRANTED.

17 These findings and recommendations are submitted to the United States District || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within 14 days || after being served with these findings and recommendations, any party may file written objections || with the Court. Responses to objections shall be filed within 14 days after service of objections.

21 || Failure to file objections within the specified time may waive the right to appeal. See Martinez v. | Yist, 951 F.2d 1153 (9th Cir. 1991).

24 || Dated: September 10, 2024 Co DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE