(HC) Bazley v. Price, No. 2:2015cv02673 - Document 22 (E.D. Cal. 2017)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 1/27/2017 ORDERING petitioner's 17 motion for appointment of counsel is DENIED without prejudice; and petitioner's 21 motion for an evidentiary hearing i s DENIED without prejudice. IT IS RECOMMENDED that respondent's 11 motion to dismiss petitioner's Claim One be granted; this action proceed on petitioner's Claims Two and Three; respondent be directed to file and serve an answer within 60 days, accompanied by all transcripts and other documents relevant to the remaining issues presented in the petition; and petitioner be accorded the option of filing and serving a reply within thirty days after service of the answer. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Yin, K)

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(HC) Bazley v. Price Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BAZLEY, 12 Petitioner, 13 14 15 No. 2:15-cv-02673 GEB AC P v. ORDER and FINDINGS AND RECOMMENDATIONS CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Respondent.1 16 17 18 I. Introduction 19 Petitioner is a former state prisoner proceeding pro se and in forma pauperis with a 20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently pending before the 21 court is respondent’s motion to dismiss the first of petitioner’s three grounds for relief because it 22 23 24 25 26 27 28 1 The California Department of Corrections and Rehabilitation (CDCR) is substituted as respondent herein. Petitioner was released from prison in September 2016 and asserts that he remains in “constructive custody,” apparently because on parole. See ECF No. 21. “Under California law, ‘an inmate-turned-parolee remains in the legal custody of the [CDCR] through the remainder of his term[.]’” Thomas v. Yates, 637 F. Supp. 2d 837, 841 (E.D. Cal. 2009) (quoting Samson v. California, 547 U.S. 843, 851 (2006)). A federal petition for writ of habeas corpus must name as respondent the state officer or entity having custody of the petitioner. See 28 U.S.C. § 2254; Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts; Smith v. Idaho, 392 F.3d 350, 354-55 (9th Cir. 2004); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 1 Dockets.Justia.com 1 fails to state a cognizable federal claim.2 See ECF Nos. 11, 18. 2 This matter is referred to the undersigned United States Magistrate Judge pursuant to 28 3 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, this court recommends 4 that petitioner’s Claim One be dismissed, and that this action proceed on petitioner’s remaining 5 Claims Two and Three. 6 II. 7 In his petition for writ of habeas corpus, petitioner challenges his no contest plea leading The Petition 8 to his August 14, 2015 conviction and five-year prison sentence for violations of California Penal 9 Code sections 530.5(a) (unauthorized use of personal identifying information), and 115.5(b) 10 (making false sworn statement to induce notarial act affecting title to real property). See ECF No. 11 1. The petitioner asserts the following claims: Claim One – unreasonable search and seizure; 12 Claim Two – no contest plea was not knowing or voluntary; Claim Three – ineffective assistance 13 of counsel on multiple grounds, including failure to challenge the subject search. 14 III. 15 Petitioner’s Claim One challenges the legality of the search of his son’s car which led in 16 part to the charges underlying petitioner’s convictions.3 Petitioner contends that the search was Motion to Dismiss Claim One 17 18 19 20 21 22 23 24 25 26 27 28 2 Respondent has withdrawn his contention this action should be dismissed as premature. See ECF No. 18; see also ECF Nos. 15, 16, 19. 3 Petitioner’s Claim One provides in full, ECF No. 1 at 6-7 (with minor edits): On or about 3/26/14, Deputy Probation Officer William (Bill) Collins conducted a so called Probation Search of petitioner’s apartment, doing the search Officer Collins removed a set of keys from petitioner’s bed rm. and left the apartment premises. When Officer Collins returned to the apartment, he stated he found a loaded magazine to a gun in petitioner’s car. Petitioner stated under Miranda advisement that he didn’t own a car. Officer Collins searched a car owned and registered to Michael Lee Bazley, petitioner’s son. . . . Michael Lee Bazley owned the property searched and item seized. All times relevant before the warrantless unreasonable search of Michael Lee Bazley’s car, petitioner was never in custody or control of the property searched and item seized. Petitioner was never in constructive possession, custody nor control of the property search and item seized, therefore rendering the search unreasonable. 2 1 unreasonable under the Fourth Amendment 2 Respondent moves to dismiss petitioner’s Claim One on the ground that it is barred from 3 federal habeas review under the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465 4 (1976). 5 Petitioner responds that his Fourth Amendment claim should not be dismissed “because 6 the state proceedings did not amount to a full and fair opportunity to litigate the claim either 7 because petitioner was denied a full and fair opportunity to litigate the claim at the trial level or 8 on appeal or both.” ECF No. 15 at 2 (sic). Petitioner further contends that he “was not 9 provide[d] a fair opportunity to raise Claim One/4th Amendment Claim in the state trial court 10 because trial counsel’s representation fell below an objective standard of reasonableness.” ECF 11 No. 20 at 2. 12 The Fourth Amendment, as applied by the exclusionary rule, prohibits the use of illegally 13 obtained evidence in a criminal proceeding. “The exclusionary rule was a judicially created 14 means of effectuating the rights secured by the Fourth Amendment.” Stone, 428 U.S. at 482. 15 “‘The rule is calculated to prevent, not to repair.’” Id. at 484 (quoting Elkins v. United States, 16 364 U.S. 206, 222 (1960)). “[T]hese considerations support the implementation of the 17 exclusionary rule at trial and its enforcement on direct appeal of state-court convictions.” Stone, 18 428 U.S. at 493. However, “where the State has provided an opportunity for full and fair litigation 19 of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on 20 the ground that evidence obtained in an unconstitutional search or seizure was introduced at his 21 trial.” Id. at 494, fns. omitted. 22 Pursuant to this authority, the court finds that petitioner’s Claim One, premised on the 23 Fourth Amendment, is not cognizable on federal habeas review and must therefore be dismissed. 24 Petitioner may, however, continue to pursue his argument that his Fourth Amendment rights were 25 not adequately protected in the state criminal proceeding, to the extent such a theory is 26 27 28 Proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable warrantless governmental intrusion into that place. 3 1 encompassed by his Sixth Amendment ineffective assistance of counsel claim (Claim Three). 2 See Lockhart v. Fretwell, 506 U.S. 364, 380, n.6 (1993) (“although certain Fourth Amendment 3 violations are themselves not cognizable on federal habeas review, see Stone v. Powell, 428 U.S. 4 465 (1976), counsel’s failure to litigate such Fourth Amendment claims competently may still 5 give rise to a cognizable ineffective-assistance claim”) (citing Kimmelman v. Morrison, 477 U.S. 6 365, 374 (1986)). 7 IV. 8 Petitioner has filed a second “form request” for appointment of counsel. His first request 9 Petitioner’s Request for Appointment of Counsel was denied without prejudice. See ECF No. 10. Petitioner again asserts that he is indigent and 10 unlearned in the law, and requires the assistance of counsel to protect his interests; petitioner 11 notes that he has a twelfth-grade education. See ECF No. 17. As the court previously informed 12 petitioner, there is no absolute right to appointed counsel in habeas proceedings. See Nevius v. 13 Sumner, 105 F.3d 453, 460 (9th Cir. 1996). Nevertheless, the court may appoint counsel at any 14 stage of a habeas proceeding “if the interests of justice so require.” See 18 U.S.C. § 3006A; Rule 15 8(c), Fed. R. Governing § 2254. 16 This court finds that appointment of counsel is not required at the present time to ensure 17 that the interests of justice are met in this case, particularly because plaintiff has not demonstrated 18 a reasonable likelihood of success on the merits of his remaining claims. Therefore, petitioner’s 19 instant request for appointment of counsel, ECF No. 17, will be denied without prejudice. 20 21 V. Petitioner’s Request for an Evidentiary Hearing Petitioner requests that the court convene an evidentiary hearing “on the grounds, That 22 The defendant failed and/or Refused to address The Merits of This Case, and Withdraw Their 23 Motion To dismiss.” ECF No. 21 at 1 (sic). 24 The Supreme Court has made clear that in determining whether an evidentiary hearing is 25 warranted under 28 U.S.C. 2254(e)(2), the court must consider the standards for habeas relief 26 under section 2254(d). See Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (“‘[B]ecause the 27 deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court 28 must take into account those standards in deciding whether an evidentiary hearing is 4 1 appropriate.’”) (quoting Schiro v. Landrigan, 550 U.S. 465, 474 (2007).). In other words, the 2 process of determining whether an evidentiary hearing should be granted necessarily includes an 3 analysis of both sections 2254(d) and 2254(e)(2). See Cullen at 183-86; see also Landrigan, 550 4 U.S. at 474 (“In deciding whether to grant an evidentiary hearing, a federal court must consider 5 whether such a hearing could enable an applicant to prove the petition’s factual allegations, 6 which, if true, would entitle the applicant to federal habeas relief.”). 7 In light of this analytical overlap and the overwhelming demand on the court’s docket, the 8 court finds that the most prudent approach is to defer a decision on whether an evidentiary 9 hearing is appropriate until the court conducts a section 2254(d) analysis. See Landrigan, 550 10 U.S. at 473 (decision to grant an evidentiary hearing generally left to the sound discretion of the 11 district court) (citations omitted). 12 Therefore, petitioner’s request for an evidentiary hearing will be denied without prejudice 13 and the court will address sua sponte whether an evidentiary hearing is warranted when the merits 14 of the petition are considered. 15 VI. 16 For the foregoing reasons, IT IS HEREBY ORDERED that: 17 1. Petitioner’s motion for appointment of counsel, ECF No. 17, is denied without 18 19 20 Conclusion prejudice; and 2. Petitioner’s motion for an evidentiary hearing, ECF No. 21, is denied without prejudice. 21 Additionally, IT IS HEREBY RECOMMENDED that: 22 1. Respondent’s motion to dismiss petitioner’s Claim One, ECF No. 11, be granted; 23 2. This action proceed on petitioner’s Claims Two and Three; 24 3. Respondent be directed to file and serve an answer within sixty days, accompanied by 25 all transcripts and other documents relevant to the remaining issues presented in the petition, see 26 Rules 4 and 5, 28 U.S.C. foll. § 2254; and 27 28 4. Petitioner be accorded the option of filing and serving a reply within thirty days after service of the answer. 5 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(l). Within fourteen days 3 after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. Such a document should be captioned 5 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 6 he shall also address whether a certificate of appealability should issue and, if so, why and as to 7 which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed 8 within fourteen days after service of the objections. The parties are advised that failure to file 9 objections within the specified time may waive the right to appeal the District Court’s order. 10 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 DATED: January 27, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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