# Bernard Brown, Jr. v. Marcus Pollard > District Court, C.D. California · February 1, 2022 URL: https://www.frixlaw.com/law-library/cases/9979037 ## Case - **Court:** District Court, C.D. California - **Decided:** February 1, 2022 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9979037 ## Opinion text 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. CV-90 (03/15) Civil Minutes — General Page 1 of 4 Case 2:22-cv-00592-FLA-KS Document 4 Filed 02/01/22 Page 2 of 4 Page ID #:261 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). CV-90 (03/15) Civil Minutes – General Page 2 of 4 Case 2:22-cv-00592-FLA-KS Document 4 Filed 02/01/22 Page 3 of 4 Page ID #:262 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 CV-90 (03/15) Civil Minutes – General Page 3 of 4 Case 2:22-cv-00592-FLA-KS Document4 Filed 02/01/22 Page 4of4 Page ID #:263 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.”). CV-90 (03/15) Civil Minutes — General Page 4 of 4 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9979037. Public record. Not legal advice.