C.D.Cal.: Holding back on 4A claim in habeas was waiver and Stone barred

2254 petitioner had a duty to raise his alleged search claims timely in state court, and his failure to do so “doomed” that claim on habeas. Claiming a desire to raise it later is almost certainly too little too late. (My words, not the court’s.) Cook v. Lundy, 2024 U.S. Dist. LEXIS 33888 (C.D. Cal. Jan. 18, 2024), adopted, 2024 U.S. Dist. LEXIS 32729 (C.D.Cal. Feb. 26, 2024)*:

In his most recent Reply, Petitioner argued that he had not yet had an opportunity for full and fair litigation in California state court because his claim about his cell phone is still pending in the California Supreme Court. (ECF 31 at 11-12.) Setting aside the fact that the most recent Petition still does not mention the search of his cell phone (LD 11 at 3), Petitioner’s argument misses the point. The question under Stone v. Powell is whether he had an opportunity to litigate that claim in the state court, not whether he took advantage of that opportunity. Newman v. Wengler, 790 F.3d 876, 878-80 (9th Cir. 2015) (“The 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.”). He did have that opportunity, as shown by the fact that he litigated other suppression issues. His claim is thus doomed under Stone v. Powell, regardless of any merit it may have.