Bernard Brown, Jr. v. Marcus Pollard

Case 2:22-cv-00592-FLA-KS Document4 Filed 02/01/22 Pagel1of4 Page ID #:260

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL

Case No. _ CV 22-592 FLA (KS) Date: February 1, 2022

Title Bernard Brown, Jr. v. Marcus Pollard

6S □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 00 O_o

Present: The Honorable: Karen L. Stevenson, United States Magistrate Judge

Gay Roberson N/A

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Petitioner: None Attorneys Present for Respondent: None

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL

On January 25, 2022, Petitioner, a California state prisoner proceeding pro se, filed a

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). (Dkt. No. 1.)

I. Background

Petitioner is in custody following a December 2018 conviction in the Los Angeles Superior

Court on four counts of first degree residential burglary and one count of driving or taking a vehicle

without the owner’s consent. (/d. at 2.) The jury found true an allegation that another person other

than an accomplice was present in the residence during one burglary, and Petitioner admitted one

prior conviction for driving or taking a vehicle without consent. People v. Brown, No. B295442,

2020 WL 4931420, at *1 (Cal. Ct. App. Aug. 24, 2020). Petitioner also admitted two prior

convictions that qualified as “strikes” under California’s three strikes law, as well as prior serious

felony convictions for purposes of another statutory enhancement. Jd. On January 23, 2019, the

trial court sentenced Petitioner to a term of 64 years to life in state prison. Jd.

On direct appeal, Petitioner raised the following claims: (1) his convictions on counts 4

and 5 for first degree residential burglary should be reduced to second degree burglary; (2) state

law prohibited separate punishments for counts 1, 4 and 5 (all residential first degree burglary

charges); (3) trial counsel was ineffective for failing to raise his sentencing issues in the trial court;

and (5) the evidence was insufficient to support the first degree burglary conviction in count 5.

1 For ease of reference, the Court cites to the page numbers assigned by the Court’s electronic case filing

system.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. CV 22-592 FLA (KS) Date: February 1, 2022

Title Bernard Brown, Jr. v. Marcus Pollard

Id. The California Court of Appeal granted Petitioner relief on his first claim, ordered Petitioner’s

judgment to be modified to reduce counts 4 and 5 from first to second degree burglary, and

remanded to the state court for a full resentencing hearing. Id. at *2-4. The appellate court rejected

Petitioner’s remaining claims on the merits. Id. at 4-7. The California Supreme Court denied

review of the California Court of Appeal’s decision on October 28, 2020 (case no. S264621,

available at http://appellatecases.courtinfo.ca.gov).2

Petitioner filed one state habeas petition in the California Court of Appeal. (Dkt. No. 1 at

188-254.) That petition was summarily denied on October 1, 2021 (case no. B314727, available

at http://appellatecases.courtinfo.ca.gov). There is no record of a state habeas petition having been

filed by Petitioner in the California Supreme Court.

Petitioner, in this Court, raises the following claims, none of which were raised in his direct

appeal: (1) the evidence at trial was insufficient to support Petitioner’s conviction of first degree

residential burglary in count 2; (2) Petitioner’s conviction on count 2 was the result of an unduly

suggestive identification; (3) Petitioner’s trial counsel was ineffective for failing to zealously

represent Petitioner as to count 2; (4) the prosecution knowingly presented false testimony in

violation of Napue v. Illinois, 360 U.S. 264, 269 (1959); and (5) cumulative error. (Dkt. No. 1 at

5-7.)

II. Legal Standard

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28

U.S.C. foll. § 2254 (“Habeas Rules”), requires the Court to dismiss a petition without ordering a

responsive pleading where “it plainly appears from the petition and any attached exhibits that the

petitioner is not entitled to relief.” Thus, Rule 4 reflects Congress’s intent for the district courts to

take an active role in summarily disposing of facially defective habeas petitions. Boyd v.

Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998); see also 28 U.S.C. § 2243 (if it “appears from

the application that the applicant or person detained is not entitled” to habeas relief, a court may

dismiss the action without ordering service on the requested party). However, a district court’s

2 Federal courts may take judicial notice of relevant state court records in federal habeas proceedings. See

Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2001), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005); Williams v. Jacquez, No. CV 09-2703 DSF (DTB). 2010 WL 1329585, at *2 (C.D. Cal. Feb. 22,

2010) (taking judicial notice in § 2254 habeas case of California state court appellate records).

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. CV 22-592 FLA (KS) Date: February 1, 2022

Title Bernard Brown, Jr. v. Marcus Pollard

use of this summary dismissal power is not without limits. Id. at 1128. To the contrary, a habeas

court must give a petitioner notice of the defect and the consequences for failing to correct it as

well as an opportunity to respond to the argument for dismissal. Id. Accordingly, this Order is

intended to give Petitioner notice that the Petition is subject to dismissal because the claims

therein appear to be unexhausted. To discharge this Order and avoid dismissal, Petitioner,

no later than March 2, 2022, must file a First Amended Petition showing that the claims

raised are exhausted.

III. The Petition is Unexhausted

As a matter of comity, a federal court will not entertain a habeas corpus petition unless the

petitioner has exhausted the available state judicial remedies on every ground presented in the

petition. Rose v. Lundy, 455 U.S. 509, 518-22 (1982). Thus, the Anti-Terrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), which governs this action, explicitly provides that a

habeas petition brought by a person in state custody “shall not be granted unless it appears that –

(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is

an absence of available State corrective process; or (ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).

To satisfy AEDPA’s exhaustion requirement, a state prisoner must “fairly present” his

federal claims to the state courts, that is, give them a fair opportunity to consider and correct

violations of the prisoner’s federal rights. See Duncan v. Henry, 513 U.S. 364, 365 (1995);

Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc). In California, a state

prisoner seeking relief with respect to a California conviction is required to “fairly present” his

federal claims to the California Supreme Court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (a

state prisoner must fairly present his claim to a state supreme court having the power of

discretionary review); Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998).

Here, it appears that Petitioner has not presented his current claims to the state supreme

court. He did not raise the claims in his direct appeal and there is no record of him filing any

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL

Case No. _ CV 22-592 FLA (KS) Date: February 1, 2022

Title Bernard Brown, Jr. v. Marcus Pollard

habeas petition in the California Supreme Court. Consequently, the Petition is subject to dismissal

as wholly unexhausted. Rose, 455 U.S. at 510, 521?

IV. Conclusion and Order

In the interests of justice, Petitioner is ORDERED TO SHOW CAUSE on or before

March 3, 2022 why the Petition should not be dismissed — that is, Petitioner must file, no later

than March 3, 2022, a First Amended Petition for Writ of Habeas Corpus establishing that the

claims therein are fully exhausted because Petitioner presented them to the California Supreme

Court.

Petitioner’s failure to timely show cause for proceeding with this action will result in the

Court recommending dismissal pursuant to Rule 4 of the Habeas Rules, Local Rule 41-1, and Rule

41 of the Federal Rules of Civil Procedure.

Alternatively, if Petitioner no longer wishes to pursue this action, he may voluntarily

dismiss it by filing a signed document entitled “Notice of Voluntary Dismissal” in accordance

with Federal Rule of Civil Procedure 41(a)(1).

The Clerk is directed to send Petitioner a copy of the Central District’s form habeas petition

and a copy of the Central District’s form Notice of Voluntary Dismissal.

IT IS SO ORDERED.

Initials of Preparer _ or

3 The Court also notes that nothing in the Petition or its attachments indicates that Petitioner has yet been

resentenced upon remand. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (the AEDPA limitations period did

not commence until both the petitioner’s conviction and re-sentencing “became final by the conclusion of direct

review or the expiration of the time for seeking such review.”).

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