Emert v. San Diego Probation Department

1
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
ROBERT EMERT,
Petitioner,
v.
SAN DIEGO PROBATION DEPARTMENT,
Respondent.
Case No.: 25-cv-0820-TWR-BLM
REPORT AND RECOMMENDATION
FOR ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS
This Report and Recommendation is submitted to United States District Court Judge Todd
W. Robinson pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United
States District Court for the Southern District of California. Petitioner Robert Emert (“Emert”)
filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, naming the San Diego
Probation Department as Respondent, on April 7, 2025. ECF No. 1. On July 9, 2025, Emert,
proceeding
pro se, filed an amended petition (“Pet”). ECF No. 13. The Court has reviewed all of
the filed pleadings, including the amended petition, the Answer and Memorandum of Points and
Authorities in Support of the Answer [ECF Nos. 16, 16-1], and the lodgments [ECF No. 17]. For
the reasons discussed below, the Court RECOMMENDS the amended petition be DENIED.
I. 	FACTUAL BACKGROUND
The following facts are taken from the California Court of Appeal opinion on direct appeal:
Defendant and his ex-wife, Andrea S. (Mother), have two children together,
B.E. (Son) and S.E. In 2021, defendant and Mother were involved in divorce
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 1 of 25

2
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
proceedings in which the family court entered custody orders. On October 4, 2021,
defendant abducted Son and refused to return him to Mother’s custody despite
the family court repeatedly ordering him to do so.
District attorney investigators spoke with defendant by telephone several
times to negotiate — unsuccessfully — Son’s return to Mother. The FBI’s National
Threat Operation Center later notified one of the district attorney investigators that
defendant had contacted the FBI about his case and made veiled threats to district
attorney personnel about defendant’s knowledge of his “Second Amendment
rights.” The investigator obtained an arrest warrant for defendant.
On January 3, 2023, defendant was arrested, and Son was subsequently
reunited with Mother. By then, defendant had kept Son from Mother for about 15
months.
ECF No. 17-20, at 2-3. This Court gives deference to state court findings of fact and presumes
them to be correct. 	See 28 U.S.C. § 2254(e)(1); see also Rice v. Collins, 546 U.S. 333, 338-39
(2006) (stating that state court factual findings are entitled to statutory presumption of
correctness).
II. 	PROCEDURAL BACKGROUND1
On April 4, 2023, Emert pled guilty to one count of child abduction in violation of Cal.
Pen. Code § 278.5(a). ECF No. 17-20, at 3. On August 9, 2023, Emert filed a motion to withdraw
his guilty plea. 	ECF No. 17-1, at 87-100. 	After an evidentiary hearing, Superior Court Judge
Aaron Katz denied Emert’s motion to withdraw his guilty plea and set sentencing in December
2023. ECF No. 17-15.
On December 13, 2023, Emert filed a petition for writ of habeas corpus in the California
Court of Appeal alleging he was innocent and his plea was involuntary because it “was unlawfully
coerced through prosecutorial misconduct and ineffective assistance of counsel in violation of
the 5th and 14th Amendments.” ECF No. 17-23, at 9. Two days later, the appellate court
summarily denied the petition. ECF No. 17-24.
On December 18, 2023, Judge Katz sentenced Emert to three years of probation with a
variety of conditions. ECF No. 17-20, at 3; ECF No. 17-6, at 241-44. Relevant to Emert’s amended
1 The Court is including only the pleadings that are relevant to the instant case.
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 2 of 25

3
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
petition, the probationary conditions included a requirement that Emert “comply with CWS and
family court orders” and have “no negative contact” with his son. ECF No. 17-6, at 243. During
the plea colloquy, Judge Katz advised Emert that “[t]his Court will defer to any visitation and
custody orders of family court” and confirmed that Emert understood that he must comply with
the family court orders. ECF. No. 17-1, at 109-112.
On July 8, 2024, Emert filed a direct appeal challenging the reasonableness of the
conditions authorizing a probation officer to impose curfew and alcohol-related restrictions and
asserting that his lawyer2 provided ineffective assistance by failing to object to the challenged
probation conditions. ECF 17-17. On June 30, 2025, the California Court of Appeal affirmed the
judgment of the trial court. ECF 17-20.
On April 3, 2024, Emert filed a petition for writ of habeas corpus in the California Supreme
Court seeking “to vacate his conviction” alleging,
inter alia, factual innocence, involuntary guilty
plea, and ineffective assistance of counsel regarding his plea. ECF No. 17-25, at 7. On February
11, 2025, the California Supreme Court denied the petition in a brief opinion citing People v.
Duvall3, In re Dixon4, In re Lindley5, and In re Swain6. ECF No. 17-54, at 3.
On April 7, 2025, Emert filed a petition for writ of habeas corpus in this district. ECF No.
1. On July 9, 2025, Emert filed the operative pleading, an amended petition for writ of habeas
corpus alleging six violations. ECF No. 13. On September 22, 2025, Respondent filed an Answer
to the First Amended Petition for Writ of Habeas Corpus (“Ans”) [ECF No. 16] and the
Memorandum of Points and Authorities in support of the Answer (“Resp”) [ECF No. 16-1]. On
2 The lawyer who represented Emert for sentencing was different from the lawyer who
represented him during his guilty plea. See ECF No. 17-20, at 5 n. 1 (“Defendant changed
counsel several times in 2023. . . . From January to June, he was represented by retained
counsel Jose Badillo. From June to September, defendant was represented by the public
defender’s office. From September to October, defendant represented himself. And from October
to December, defendant was represented by [T. Matthew] Phillips.”).
3 9 Cal.4th 464, 474 (1995).
4 41 Cal.2d 756, 759 (1953).
5 29 Cal.2d 709, 723 (1947).
6 34 Cal.2d 300, 304 (1949).
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 3 of 25

4
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the same day, Respondent lodged the state court record. ECF No. 17.
Emert did not file a traverse by January 30, 2026, the final deadline set by Magistrate
Judge Major. ECF No. 25. On February 2, 2026, Emert filed a Notice of Supplemental Evidence
in Support of Petition for Writ of Habeas Corpus attaching a motion filed in the Ninth Circuit as
part of an appeal of a different case. ECF No. 30. On February 11, 2026, District Judge Todd W.
Robinson filed an order denying Emert’s motion to overrule Magistrate Judge Major’s December
11, 2025 discovery order. ECF No. 33. Judge Robinson also extended the deadline for Emert’s
traverse to March 13, 2026. Id. (“Petitioner MAY FILE an optional traverse, if any, within thirty
(30) days of the date of this Order.”) (emphasis in original). On February 11, 2026, Emert filed
a notice that included a statement that he had filed a traverse on January 16, 2026. 	ECF No.
34. Because the docket did not reflect that filing, the Court directed Emert to re-file the traverse
or clarify which filing was his traverse. 	ECF No. 35. Emert did not respond to the Court’s order
and did not file a traverse by the deadline imposed by Judge Robinson. See Docket.
III. 	STANDARD OF REVIEW
Emert’s petition is governed by the provisions of the Anti-Terrorism and Effective Death
Penalty Act of 1996, 28 U.S.C. § 2254 (“AEDPA”). 	See Lindh v. Murphy, 521 U.S. 320 (1997).
Pursuant to AEDPA, a state prisoner is not entitled to federal habeas relief on a claim that the
state court adjudicated on the merits, unless the adjudication “(1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C § 2254(d)(1)-(2); see Harrington v. Richter, 562 U.S. 86, 97-
98 (2011).
A decision is “contrary to” clearly established law if “the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of materially indistinguishable
facts.” 	Williams v. Taylor, 529 U.S. 362, 413 (2000). 	A decision involves an “unreasonable
application” of clearly established federal law if “the state court identifies the correct governing
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 4 of 25

5
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
legal principle . . . but unreasonably applies that principle to the facts of the prisoner’s case.”
Id.; Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir. 2004).
With respect to section 2254(d)(2), “[t]he question under AEDPA is not whether a federal
court believes the state court’s determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
(citing Williams, 529 U.S. at 410). 	“State-court factual findings, moreover, are presumed
correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing
evidence.’” Rice, 546 U.S. at 338-39 (quoting 28 U.S.C. § 2254(e)(1)).
Significantly, a federal court is not called upon to decide whether it agrees with the state
court’s determination; rather, the court applies an extraordinarily deferential review. See
Yarborough v. Gentry, 540 U.S. 1, 4 (2003). “A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” 	Richter, 562 U.S. at 101 (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). “If this standard is difficult to meet, that is because it was
meant to be. 	As amended by AEDPA, § 2245(d) stops short of imposing a complete bar on
federal court relitigation of claims already rejected in state proceedings. . . . It preserves
authority to issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [the Supreme] Court’s precedents.” Id. at 102.
Where there is no reasoned decision from the state’s highest court, the Court “looks
through” to the last reasoned state court decision and presumes it provides the basis for the
higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 804-06 (1991).
If the dispositive state court order does not “furnish a basis for its reasoning,” federal habeas
courts must conduct an independent review of the record to determine whether the state court’s
decision is contrary to, or an unreasonable application of, clearly established Supreme Court
law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000), overruled on other grounds;
accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 5 of 25

6
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IV. 	DISCUSSION
A. Ground One: Factual Innocence and Baseless Prosecution
In Ground One, Emert contends that he is factually innocent because he had no “malice”
in abducting his son, which is an element of child abduction under California Penal Code
§278.5(a)7. Pet at 14-17. He further contends that the prosecution knew that the abduction of
his son was without “malice” but prosecuted him merely to coerce a guilty plea. 	Id. at 14, 17-
19. Emert alleges that because he was innocent, the prosecution of him violated his Fourteenth
Amendment Due Process right. Id. at 14.
Emert did not include this argument in his direct appeal. See ECF Nos. 17-17, 17-19, 17-
20. He did present the argument to the California Superior Court and Court of Appeal in habeas
petitions filed prior to sentencing. 	ECF Nos. 17-21, 17-23. 	The Superior Court did not resolve
the challenge because Emert was “not subject to restraint or confinement and a petition for writ
of habeas corpus is not the appropriate avenue to seek to withdraw a plea.” 	ECF No. 17-22.
The appellate court denied the petition without reasoning. 	ECF No. 17-24. 	After sentencing,
Emert presented these arguments to the California Supreme Court in a habeas petition. 	ECF
No. 17-25, at 18. 	The Supreme Court denied the petition citing several authorities, including
Lindley8 and Dixon9.
Respondent argues that Emert’s claim of insufficient evidence (namely, lack of malice in
abduction) is procedurally barred because he did not raise the issue on direct appeal. Resp at
14-16. Respondent further contends that Emert’s claims of insufficient evidence and baseless,
7 Cal. Pen. Code § 278.5(a):
Every person who takes, entices away, keeps, withholds, or conceals a child and
maliciously deprives a lawful custodian of a right to custody, or a person of a right to
visitation, shall be punished by imprisonment in a county jail not exceeding one year, a
fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or
by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or
three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and
imprisonment.
8 29 Cal.2d at 723.
9 41 Cal.2d at 759.
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 6 of 25

7
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
vindictive prosecution are barred because he pled guilty. Id. at 16-18.
1. Insufficiency of Evidence (Lack of Malice)
A federal habeas court generally should refuse to hear claims defaulted in state court
“pursuant to an independent and adequate state procedural rule.” Johnson v. Lee, 578 U.S. 605,
606 (2016) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). State rules are
“adequate” if they are “firmly established and regularly followed.” Id. (quoting Walker v. Martin,
562 U.S. 307, 316 (2011)). “Independent” means the state law “is not interwoven with federal
law.” Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003). California state law requires criminal
defendants to raise available claims on direct appeal and a defendant procedurally defaults a
claim raised for the first time on state collateral review if he could have raised it earlier on direct
appeal. See Carter v. Giurbino, 385 F.3d 1194, 1196 (9th Cir. 2004); Lindley, 29 Cal.2d at 709,
723.
In 1947, the California Supreme Court held that challenges to “the sufficiency of the
evidence to warrant the conviction of the petitioner is not a proper issue for consideration” upon
habeas corpus review. Lindley, 29 Cal.2d at 722-24. 	This procedural bar has been utilized in
California state courts for decades to mandate that a “claim of insufficiency of evidence can only
be considered on direct appeal, not in habeas proceedings.” Carter, 385 F.3d at 1196 (affirming
the district court’s holding that the Lindley rule was an independent and adequate state
procedural bar and that appellant had defaulted his sufficiency of evidence claims by failing to
pursue them on direct appeal); see Smart v. Hedgpeth, 476 F. App'x 803-04 (9th Cir. 2012)
(holding that the petitioner procedurally defaulted his “new” sufficiency of the evidence claim
and citing Carter, 385 F.3d at 1196).
Emert did not raise the insufficiency of the evidence claim on direct appeal. ECF No. 17-
17 (opening brief); ECF No. 17-19 (reply). Accordingly, Emert’s insufficiency of the evidence
challenge in Ground One is barred.
2. Impact of Guilty Plea
Emert’s challenge to the sufficiency of the evidence also is barred by his guilty plea. See
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 7 of 25

8
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Tollett v. Henderson, 411 U.S. 258, 267 (1973).10 “The focus of federal habeas inquiry is the
nature of the advice [of the counsel] and the voluntariness of the plea, not the existence as
such of an antecedent constitutional infirmity.” Id. at 266. “[A] guilty plea represents a break in
the chain of events which has preceded it in the criminal process.” Id. at 267. “When a criminal
defendant has solemnly admitted in open court that he is in fact guilty of the offense with which
he is charged, he may not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea.” Id.
Because Emert pled guilty, his challenge to the sufficiency of the evidence is barred by
Tollett. See United States v. Chavez-Diaz, 949 F.3d 1202, 1206 (9th Cir. 2020) (stating that the
Ninth Circuit has “routinely held that defendants who pleaded guilty unconditionally cannot raise
on appeal various claims of antecedent legal error”); Turner v. Stainer, 2012 WL 5389762, at
*5-7 (C.D. Cal. Nov. 5, 2012) (“In general, when a criminal defendant pleads guilty to an offense,
he cannot later claim deprivations of constitutional rights that occurred prior to the entry of his
guilty plea.”).
3. Baseless Prosecution
While Tollett generally precludes habeas challenges to conduct that occurred prior to the
entry of a guilty plea, the Supreme Court has identified limited exceptions to that rule. 	In
Blackledge v. Perry11, the Supreme Court held that if the initiation of criminal proceedings against
the defendant operated to deny him due process, the defendant’s guilty plea could not foreclose
a habeas petition attacking the subsequent conviction. The Supreme Court subsequently stated
that “so long as the prosecutor has probable cause to believe that the accused committed an
offense defined by statute, the decision whether or not to prosecute, and what charge to file or
bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434
U.S. 357, 364 (1978). The Ninth Circuit explained that the exception to the Tollett bar is limited
10 As discussed below in detail, infra Sections IV.A.3, IV.C, and IV.D, the California Supreme
Court’s denial of Emert’s claim that his guilty plea was not “voluntary and intelligent” was neither
contrary to, nor an unreasonable application of, clearly established federal law.
11 417 U.S. 21, 30-31 (1974).
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 8 of 25

9
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to “those claims in which, judged on the face of the indictment and record, the charge in question
is one which the state may not constitutionally prosecute.” United States v. Johnston, 199 F.3d
1015, 1020 n. 3 (9th Cir. 1999); see United States v. Chavez-Diaz, 949 F.3d 1202, 1208 (9th
Cir. 2020) (“[Those exceptions] appl[y] where the judge could determine at the time of
accepting the plea, from the face of the indictment or from the record, that the government
lacked the power to bring the indictment.”) (internal quotation omitted).
In the underlying criminal prosecution of Emert, there was a preliminary examination
hearing on February 10, 2023, during which the prosecutor presented evidence and testimony
addressing each element of the crime of child abduction, including malice. 	ECF No. 17-7, at 4-
19. 	Defense counsel cross-examined the testifying agent and was given the opportunity to
present evidence. Id. at 19-24. At the conclusion of the hearing, Judge Gaston found “there is
probable cause to believe that the offense charged in Count 1 [child abduction] has been
committed and that defendant is guilty thereof. And he will therefore be bound over for further
proceedings in the Superior Court.” 	Id. at 25. 	In addition, during the evidentiary hearing on
Emert’s motion to dismiss and to withdraw his guilty plea, Judge Katz noted that he had reviewed
the preliminary examination hearing transcript and agreed with Judge Gaston that there was
“sufficient evidence to hold Mr. Emert to answer on the charges alleged in the Complaint.” ECF
No 17-15, at 103. Finally, during the plea colloquy, Judge Katz confirmed there was a factual
basis for Emert’s guilty plea, including that Emert “did unlawfully and maliciously take, entice
away, keep, withhold and conceal [his son] and deprive a lawful custodian of a right to custody.”
ECF No. 17-1, at 114.
Based on the evidence presented during the preliminary examination hearing and the
trial 	court’s 	finding 	of 	“probable 	cause,” 	the 	initiation 	of 	the 	criminal 	charge 	was 	not
unconstitutional and the exception to the Tollett bar is not applicable to this case. See
Bordenkircher, 434 U.S. at 364 (“[S]o long as the prosecutor has probable cause to believe that
the accused committed an offense defined by statute, the decision whether or not to prosecute,
and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”);
United States v. JDT, 762 F.3d 984, 996 (9th Cir. 2014) (citing Bordenkircher, 434 U.S. at 364).
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 9 of 25

10
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
This conclusion is further supported by Judge Katz’s findings after Emert’s guilty plea and at the
conclusion of the hearing on Emert’s motion to withdraw his guilty plea. See ECF Nos. 17-1, at
114; 17-15, at 103.
For the reasons set forth above, the California Supreme Court’s denial of Emert’s claims
in Ground One was neither contrary to, nor an unreasonable application of, clearly established
federal law. Accordingly, the Court recommends that Ground One be denied.
B. Ground Two: Family Court’s Jurisdiction
In Ground Two, Emert asserts that the Superior Court judges who presided over his family
court proceedings lacked jurisdiction to enter a variety of orders. 	Pet at 19-20. Emert explains
that he filed a California Code of Civil Procedure § 170.6 challenge against Judge Patti Ratekin,
which automatically divested her of jurisdiction. 	Id. 	He asserts that Judge Ratekin improperly
denied this challenge and continued to issue orders in his family court proceedings. 	Id. 	Emert
argues that Judge Ratekin’s orders, including ones later confirmed by Judge Lorna Alksne, were
void. 	Id. 	He further argues that the family court rulings infected the subsequent criminal
proceedings and violated his Fourteenth Amendment rights. Id.
Respondent argues that Ground Two should be denied because the claims are not
exhausted and do not present a federal claim. Resp at 19-21.
Emert does not state that he presented this argument to any state court and a review of
the lodgments indicates that he is presenting this argument for the first time in this habeas
proceeding.
For the following reasons, the Court finds the claims asserted in the Ground Two are not
reviewable in this proceeding. First, AEDPA bars the granting of habeas corpus relief “unless it
appears that the applicant has exhausted the remedies available in the courts of the State.”
Gray v. Netherland, 518 U.S. 152, 161-63 (1996); Akopyan v. Cates, 2024 WL 487722, at *1
(9th Cir. Feb. 8, 2024) (“A petitioner satisfies the exhaustion requirement by fully and fairly
presenting each claim to the highest state court.”) (quoting Scott v. Schriro, 567 F.3d 573, 582
(9th Cir. 2009)); see also Ortiz v. Sec'y of Corr., CDCR, 2023 WL 7486742, at *2 (9th Cir. Nov.
13, 2023) (holding that petitioner’s ”failure to exhaust preclude[d] review of [his] prosecutorial
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 10 of 25

11
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
misconduct claim” because he “did not raise his prosecutorial misconduct claim” in state courts);
28 U.S.C. § 2254(b). A convicted state court defendant must give the state courts an opportunity
to act on the claims before presenting those claims in a federal habeas petition. O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999); see Akopyan, 2024 WL 487722 at *1. Because Emert never
presented this claim to the California state courts, this claim is unexhausted and must be denied.
See Gray, 518 U.S. at 161-63; O’Sullivan, 526 U.S. at 842; Akopyan, 2024 WL 487722 at *1.
Second, Emert’s claim does not present a federal claim; it merely challenges the handling
of his California Code of Civil Procedure § 170.6 challenge to state court judges and their
subsequent decisions. “[F]ederal habeas corpus relief does not lie for errors of state law.” Estelle
v. McGuire, 502 U.S. 62, 67 (1991) (internal quotation omitted); Burrell v. Lewis, 172 F.3d 875
(9th Cir. 1999) (“To the extent [petitioner] challenges the application of California state law, his
claim is not cognizable in a federal habeas petition.”); Villaneda v. Santoro, 2023 WL 2158808,
at *1 (9th Cir. Feb. 22, 2023) (“To the extent [petitioner] challenges the state court's application
of California Civil Procedure Code § 237, his claim is not cognizable on federal habeas review. .
. . [F]ederal habeas corpus relief does not lie for errors of state law.”) (internal quotation
omitted); Chambers v. Grounds, 2012 WL 5391859, at *15 (C.D. Cal. Sept. 21, 2012), report
and recommendation adopted, 2012 WL 5391730 (C.D. Cal. Nov. 2, 2012) (“Because petitioner's
challenge to the denial of his § 170.6 motion only involves state law, it is not cognizable in this
habeas proceeding as it is well settled that a federal habeas court does not have the authority
to review a state's application of its own laws.”).
Third, this argument also is not reviewable because it does not concern Emert’s criminal
judgment and sentence. 	See Dominguez v. Kernan, 906 F.3d 1127, 1136-37 (9th Cir. 2018)
(concluding that “§ 2254 requires a nexus between ‘the judgment of a State court’ and the
‘custody’ the petitioner contends is ‘in violation of the Constitution or laws or treaties of the
United States’” and holding that “[b]ecause [the petitioner’s] pretrial detention is not attributable
in any way to a state court judgment, his [] claim does not fall under § 2254”). Emert’s argument
addresses a challenge he made to family court judges and to decisions made by them in family
court; it does not address a challenge to his criminal conviction or sentence. While there is
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 11 of 25

12
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
overlap between the children involved in the family court proceedings and the abducted child in
the criminal charge, the criminal proceedings are separate from the family court proceedings
and any challenges in this habeas proceeding must be to Emert’s criminal conviction and
sentence.
The Court therefore recommends that Ground Two be denied.
C. Ground Three: Brady v. Maryland12 Violations
In Ground Three, Emert alleges that the prosecutor withheld exculpatory evidence in
violation of Brady, 373 U.S. at 83. Pet at 20-21. Emert identifies the exculpatory evidence as 1)
a September 7, 2022 recording of conversation(s) between Emert and the District Attorney’s
Investigator 	in 	which 	Emert 	alleges 	the 	Investigator’s 	statements 	were 	admissions 	that
undermined the prosecution, 2) the transcript of a call that Emert made to the FBI and a
subsequent FBI threat assessment, and 3) the contents of the prosecution’s interview of Emert’s
son. Pet at 20-21. 	Emert asserts that these Brady violations denied him his constitutional due
process right and contributed to his coerced plea. Id.
Respondent contends that the claim is procedurally barred by Tollett because Emert was
aware of the alleged Brady materials before pleading guilty. Resp at 21-22. Respondent asserts
that even if the claim was not barred, there were no Brady violations because Emert was aware
of the conversations with Investigator Peña and the FBI call because he was a participant and
that the prosecution’s interview with Emert’s son was irrelevant to the criminal charge under the
California state law. Resp at 22-24.
Emert presented this argument to the California Supreme Court. ECF No. 17-25, at 18-
19. The Court denied the petition without providing reasoning specific to this argument. 	ECF
No. 17-54. The Court therefore will conduct an independent review of the record. See Delgado,
223 F.3d at 982.
A defendant who pled guilty generally cannot later “raise independent claims relating to
the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett
,
12 373 U.S. 83 (1963).
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 12 of 25

13
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
411 U.S. at 266-67. Accordingly, to the extent Emert is asserting an independent Brady violation,
the Court recommends that the claim be denied. However, a defendant’s decision to plead guilty
is heavily influenced by his appraisal of the prosecution’s case, and a guilty plea cannot be
deemed “intelligent and voluntary” if entered without knowledge of material information
withheld by the prosecution. Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995). The
Ninth Circuit therefore held that “a defendant challenging the voluntariness of a guilty plea may
assert a Brady claim.” Id. Because Emert alleges Brady violations “contributed[ed] to his coerced
plea” [Pet at 20], the Court will consider the merits of Emert’s allegations.
In Brady, the Supreme Court held that the prosecution must provide to a criminal
defendant all evidence that is favorable to the defendant and material to guilt or punishment.
373 U.S. at 87 (“We now hold that the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”). Failure to do so
violates the defendant’s due process right. 	Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006).
Materiality “in a case involving a guilty plea is whether there is a reasonable probability that but
for the failure to disclose the Brady material, the defendant would have refused to plead and
would have gone to trial.” 	Sanchez, 50 F.3d at 1454; see also Kyles v. Whitley, 514 U.S. 419,
434 (1995) (stating that a “reasonable probability” is a probability sufficient to undermine
confidence in the outcome). When the defendant is aware of “the essential facts enabling him
to take advantage of any exculpatory evidence, the [prosecution] does not commit a Brady
violation by not bringing the evidence to the attention of the defense.” Raley, F.3d at 804; see
also 	Dorsey 	v. 	Cullen, 	2012 	WL 	6952837, 	at 	*8 	(C.D. 	Cal. 	July 	5, 	2012), 	report 	and
recommendation adopted, 2013 WL 355762 (C.D. Cal. Jan. 28, 2013) (finding no materiality
because the “petitioner and his counsel were fully aware of the Brady evidence” at the time the
defendant entered into the stipulated sentence).
With regard to the conversations involving Emert, the Court finds there was no Brady
violation because Emert was a participant in the conversations, the conversations occurred long
before Emert pled guilty, and Emert therefore knew what was discussed and was able to consider
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 13 of 25

14
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the 	allegedly 	exculpatory 	information 	before 	he 	made 	his 	decision 	to 	plead 	guilty. 	The
conversation between Emert and Investigator Peña occurred on September 7, 2022, before
Emert was charged with a crime and while Investigator Peña was attempting to negotiate the
return of Emert’s son to the custodial parent. Pet at 20; Resp at 23; ECF Nos. 17-32 (“DAI Luis
Pena[sic] call transcript that was not disclosed”), 17-7 (preliminary examination hearing).The
transcript of the call between Emert and Investigator Peña, which was created and submitted
by Emert, is lengthy and confusing but it does include statements by Investigator Peña that are
the same or similar to the allegedly exculpatory statements identified by Emert. See ECF No. 17-
32. However, a review of the entire transcript reveals that the statements were made to connect
with Emert and to convince Emert to voluntarily return the abducted child to the custodial parent
without the involvement of the criminal court. See id. As Investigator Peña explained, the goal
of the Child Abduction Unit is to assist parents in resolving child custody issues in family court
without arresting or criminally prosecuting anyone. ECF No. 17-7, at 6, 15. As such, and contrary
to Emert’s arguments, Investigator Peña’s statements are not exculpatory admissions that
undercut the validity of the prosecution, do not establish Emert’s innocence, and do not establish
a Brady violation.
Similarly, Emert alleges that the “misleading account of the FBI call” was “used as a
pretext for arrest and bail denial.” Pet at 21. Emert initiated the call to the FBI well before any
charges were filed. In fact, Investigator Peña testified that he sought an arrest warrant based
upon statements made by Emert during the call. ECF No. 17-7, at 15-18. As such, Emert was
aware of any exculpatory information discussed during the call. Moreover, Emert’s lawyer used
the contents of the FBI call, and the rest of the Child Abduction Unit’s investigation of and
interactions with Emert, during the preliminary examination hearing.13 Id. at 19-23. Accordingly,
13 With regard to the FBI threat assessment, Emert has not established that such a document
exists. Respondent states that “there does not appear to be an actual threat assessment made
by the FBI” and there is no indication in the record that it exists. See Resp at 22. 	Emert also
has not established that such an assessment would be exculpatory. Finally, because the threat
assessment would have been based on the conversation between Emert and the FBI, Emert
knew of the information before pleading guilty. As such, there is no Brady violation.
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 14 of 25

15
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the Court finds that there is no Brady violation as the information was not withheld, Emert was
aware of any exculpatory information, and Emert has not established materiality to his guilty
plea or sentence.
Emert asserts that the prosecutor’s interview with his son constituted Brady material
because the son “expressed competence and desire to live with Petitioner due to emotional
abuse.” 	Pet at 21. 	The Court finds that there was no Brady violation because Emert has not
and cannot show materiality or prejudice because the son’s feelings and desires are irrelevant
to the crime of child abduction under the California law (Cal. Pen. Code § 278.5(a)). See People
v. Coulthard, 90 Cal. App. 5th 743, 761 (2023) (“California's long-standing criminal prohibition
against child abduction in section 278 is directed at punishing any person who, without a right
to custody, maliciously takes a child with the intent to keep that child from their lawful custodian.
. . . As such, section 278 vindicates the rights of the victimized custodian, not the child.”). Here,
the lawful custodian was the child’s mother and Emert’s admitted conduct was designed to keep
the boy from his mother’s lawful custody and the fact that the boy may have preferred to live
with Emert is not exculpatory. Moreover, before his guilty plea, Emert emailed the prosecution
multiple times expressing his son’s desire to live with Emert and urging the prosecution to
interview the son. See ECF No. 17-28, at 21-24. In addition, during the preliminary examination
hearing, Investigator Peña testified that the abducted son wanted to live with Emert. ECF No.
17-7, at 21. This conduct establishes that Emert knew about his son’s preference to live with
him before he pled guilty and therefore Emert cannot show materiality of the information as it
would not reasonably alter his decision to plead guilty. See Sanchez, 50 F.3d at 1454.
Accordingly, the California Supreme Court’s decision to deny Emert’s claim of Brady
violations and the allegedly involuntary, coerced, and non-intelligent guilty plea due to the Brady
violations is neither contrary to, nor an unreasonable application of, clearly established law. The
Court therefore recommends Ground Three be denied.
D. Ground Four: Guilty Plea Was Not “Voluntary and Intelligent” Due to
Coercion by State Actors and Ineffective Assistance of Counsel
In Ground Four, Emert alleges that his guilty plea was “involuntary, unknowing, and
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 15 of 25

16
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
unintelligent, the product of unconstitutional coercion by state actors (DDA Balerio, DAI
Pena[sic]) and ineffective assistance of counsel (Jose Badillo) [in violation of] his Fifth, Sixth,
and Fourteenth Amendment rights.” 	Pet at 22. 	Emert alleges that he was held in custody
without bail based upon a fabricated threat allegedly made during his call with the FBI. 	Id.
Emert also alleges that his defense attorney provided ineffective assistance of counsel by
advising Emert that if he pled guilty, his son would be returned to him and by failing to advise
him that his guilty plea could result in a permanent loss of parental rights. 	Id. 	Emert also
alleges that the Brady violations undermined the validity of his guilty plea. Id. at 22-23. Finally,
Emert alleges that the totality of these circumstances establishes coercion that invalidated his
guilty plea. Id. at 23.
Respondent refutes Emert’s claims and explains that the charges were not fabricated as
there was probable cause for Emert’s arrest and no Brady material was withheld. 	Resp at 25.
Respondent also states that Emert has not “shown ineffective assistance of counsel.” Id. at 25-
30.
Emert presented portions of this claim to the trial court (Judge Katz) in his motion to
withdraw his guilty plea. ECF No. 17-1, at 97-99. On November 20, 2023, Judge Katz presided
over an evidentiary hearing on Emert’s motion to withdraw his guilty plea, including hearing
testimony from Jose Badillo, Emert’s counsel during the plea negotiations and guilty plea, Emert
himself, and Mark Fidelman, one of Emert’s friends who helped hire Mr. Badillo to represent
Emert. 	ECF No. 17-15. 	At the conclusion of the hearing, Judge Katz denied Emert’s motion to
withdraw his guilty plea, finding that his plea was “free and voluntary” and made without duress
or coercion, that counsel advised Emert of “all the primary and direct consequences of the plea”
without any misrepresentations, and that Emert’s claim of ineffective assistance of counsel was
without merit. Id. at 96-99.
Emert also presented these claims to the California Supreme Court, which denied the
claims without reasoning or specific citation. ECF Nos. 17-25, at 18-19; 17-54.
1. Coercion by State Actors
Emert’s first argument is that his guilty plea was coerced by the misconduct of state
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 16 of 25

17
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
actors, including the prosecutor and Investigator Peña. For the reason set forth in Ground One,
supra Section IV.A.3, there was “probable cause” for the criminal charge and Emert’s arrest,
meaning that his arrest, detention, and subsequent prosecution were not unlawful. Similarly, for
the reasons set forth in Ground Three, supra Section IV.C, there were no Brady violations and
Emert’s guilty plea was not coerced by the alleged conduct. For the reasons set forth in these
sections, the Court finds the California Supreme Court’s denial of this claim was not contrary to,
nor an unreasonable application of, clearly established federal law.
2. Ineffective Assistance of Counsel
Emert alleges that Jose Badillo, his attorney at the time of plea negotiations and guilty
plea, provided ineffective assistance of counsel in violation of the Sixth Amendment, which lead
to his plea not being “voluntary and intelligent.” Pet at 22. Specifically, Emert alleges that Mr.
Badillo “misrepresented that if [Emert] pleaded guilty, [his son] would be returned home” and
“failed to advise [Emert] that the plea could lead to permanent loss of parental rights.” 	Id.
Emert alleges that these statements were “material inducements” to his guilty plea and that the
“promise [that his son would be returned home to Emert] was broken.” Id.
To establish ineffective assistance of counsel, a petitioner must first show that his
attorney’s representation fell below an objective standard of reasonableness. Strickland v.
Washington, 466 U.S. 668, 688 (1984). “This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. Second, the petitioner must show that he was prejudiced by counsel’s
errors. Prejudice can be demonstrated by a showing that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
at 693-94. 	In implementing this standard, the Supreme Court requires that “[j]udicial scrutiny
of counsel’s performance . . . be highly deferential,” and there is a “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
Emert’s first allegation is that Mr. Badillo falsely promised him that his son would be
returned to him if he pled guilty. 	Pet at 22. 	During the evidentiary hearing on the motion to
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 17 of 25

18
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
withdraw his guilty plea, Mr. Badillo testified that the plea deal did not include an agreement
that Emert’s son would be returned home and reside with Emert. ECF No. 17-15 at 35, 39, 45.
Mr. Badillo explained that he discussed with Emert that all custody decisions would be made by
the family court and that the family court already had awarded custody of the son to Emert’s
ex-wife. Id. at 39, 45. During the same hearing, Emert testified that “it was very clear between
myself and Badillo that [my son] was supposed to come home” and that this promise was part
of the plea agreement and a fact upon which Emert relied in deciding to plead guilty. Id. at 50-
52, 86-87. 	Emert emphasized that the promise was made by Mr. Badillo on several occasions,
that other people were present during the conversations, and that there was a recording of the
conversation between Emert and Mr. Badillo on this topic.14 	Id. at 50-57. 	Emert also testified
that it was “shocking” to him that the term was not included in the written plea agreement. Id.
at 59. He explained that he remembered
asking Mr. Badillo, “If [my son] was coming home, why was the box not marked?
Was it still checked that [his son’s] protective order was there?” And I went to
raised my hand to stop proceedings to clarify that, and Badillo had said, “No. Stop
it. You know, I’ll take care of that,” and that’s where I realized something was kind
of going sideways, is because something – it just didn’t make sense that the child
protective order was still there when I was told that [son] was going to be
returning home. And he said, basically, “Don’t worry about it. We’ll take care of
that,” and I was like – and I believed him, and I believed a deal was going to be
14 Emert did not provide the recording and did not identify where in the record or transcript Mr.
Badillo made the alleged promise. ECF No. 17-15, at 73-77. Nonetheless, Emert was permitted
to testify about the allegedly-recorded conversation and stated that “the promise that was made
by Badillo and Andrea and DDA Balerio was that [my son] was going to come home in some
fashion and that needed to be worked out a little bit.” 	Id. at 78. 	Emert provided additional
testimony about the conversations and acknowledged that the transcripts were created by an
AI program. 	Id. at 78-80. 	Emert subsequently acknowledged the alleged statement made by
Mr. Badillo was not recorded but asserted that there were later conversations, after he pled
guilty, during which the alleged promise was discussed. 	Id. at 82-84. As such, there were no
recorded conversations and Emert did not present testimony from any other witness to the
conversations that supported his position. See ECF No. 17-15; see also ECF No. 30 (in his Notice
of Supplemental Evidence, Emert sets forth statements or emails that allegedly occurred after
his guilty plea and before the hearing on the motion to withdraw his guilty plea, so they were
not part of the plea negotiations but were available to support the motion to withdraw his guilty
plea).
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 18 of 25

19
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
in writing, and it’s – again, it never – it never happened.”
Id. at 69.
With regard to this allegation, after hearing all of the testimony, Judge Katz noted that
during the plea colloquy, Emert never indicated that there was a term missing from the plea
agreement or plea colloquy. 	Id. at 99. 	He also specifically found that Emert never stated that
“he understood that a term of the plea bargain [was] that he was to be provided with [son]
upon his release to live with him.” Id. In fact, during the plea colloquy, Judge Katz asked Emert
whether “any other promises [have] been made to you . . . in order to get [you to] change your
plea?” and Emert replied “No, Your Honor.” 	ECF No. 17-1 at 112. 	Emert also confirmed that
he had not been threatened and that he was pleading guilty “freely and voluntarily.” 	Id. 	After
the evidentiary hearing, Judge Katz weighed the evidence and concluded that the alleged term
was “never stated” and “never agreed upon.” ECF No. 17-15 at 99. Judge Katz also found that
Mr. Badillo worked diligently for Emert, answered all of his questions, advised him about all of
the terms of the agreement and the consequences of the guilty plea, and did not make any
misrepresentations. Id. at 96-99. Judge Katz determined that there was no coercion or duress
and that Emert fully understood the terms of the agreement and the change of plea process.
Id.
With regard to Emert’s second allegation that Mr. Badillo failed to advise him that a guilty
plea could result in him losing permanent custody of his son, Mr. Badillo testified that he
discussed with Emert all of the consequences of his guilty plea including that the plea could be
used against him in custody decisions in family court and “in other courts, in other proceedings”
and that he could lose his professional license. 	Id. at 39-40. 	He also stated that Emert had
already lost custody of his son and that he advised Emert that all custody decisions were at the
discretion of the family court. Id. at 39, 45. During his testimony, Emert admitted that he had
discussions with Mr. Badillo about pleading guilty but opined that the conversations were not
sufficient for him to understand “possible future parental rights being taken from [him].” Id. at
67. 	At the conclusion of the hearing, Judge Katz found that Mr. Badillo discussed the potential
consequences, including the possibility of permanently losing custody, with Emert prior to the
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 19 of 25

20
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
guilty plea. 	Id. at 98. 	Judge Katz explained that Mr. Badillo “went over those consequences
with Mr. Emert in detail, and Mr. Emert [understood] those potential consequences.” Id.
After a thorough review of the record, the Court finds that the California Supreme Court’s
denial of this claim was not “contrary to, or involved an unreasonable application of, clearly
established Federal law” and that the denial was not “based on an unreasonable determination
of the facts.” See 28 U.S.C § 2254(d)(1)-(2). During the plea colloquy, Emert admitted all
elements of the crime, that no other promises were made to him, and that he was pleading
guilty freely and voluntarily. During the hearing on the motion to withdraw Emert’s guilty plea,
counsel confirmed that he did not make the alleged misrepresentation, that the plea agreement
did not include the alleged term, and that he fully advised Emert regarding the plea terms and
possible consequences. While Emert contradicted Mr. Badillo’s testimony, Emert’s testimony was
inconsistent, changed over time, and was unsupported by the evidence identified by Emert
(audio recording and other witnesses). Moreover, while Emert asserts that Mr. Badillo prevented
him from raising the misrepresentation during the plea colloquy, the record reflects no such
communication and includes a question asked by Emert to clarify the terms of the agreement.
See ECF No. 17-1; Id. at 112. Accordingly, there is ample evidence supporting Judge Katz’s
findings and decisions and the California Supreme Court’s denial of this claim. The Court
therefore recommends Ground Four be denied.
E. Ground Five: Arrest and Prosecution Were Retaliation for Protected Speech
Emert alleges that his “arrest and prosecution were unlawful retaliation for his First
Amendment protected speech: his public corruption complaint (October 21, 2021) against family
court officials and the DA’s office.” Pet at 23. 	He argues that the 15-month delay between his
complaint and arrest “strongly suggests retaliatory motive.” Id. at 24. In making this argument,
Emert again asserts that Investigator Peña’s statements prove Emert’s innocence and therefore
the unlawful prosecution was retaliatory. Id.
Respondent argues that this claim is barred by Tollett because it occurred prior to Emert’s
guilty plea. 	Resp at 30. 	Respondent also asserts that the allegation is conclusory and
unsupported by facts and that the state court reasonably denied it. Id. at 30-32.
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 20 of 25

21
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Emert presented this argument to the California Supreme Court. 	ECF No. 17-25, at 18-
19. 	The Supreme Court denied it without specific reasoning but with a citation to Swain15, “[a
petition for writ of habeas corpus must allege sufficient facts with particularity].” ECF No. 17-54
at 3.
In Swain, the California Supreme Court denied without prejudice a writ of habeas
corpus because “the vague, conclusionary allegations of the present petition [we]re insufficient
to warrant issuance of the writ” of habeas, for a court “[is] entitled to and [does] require of a
convicted defendant that he allege with particularity the facts upon which he would have a final
judgment overturned and that he fully disclose his reasons for delaying in the presentation of
those facts.” 34 Cal. 2d at 303–04; see Sanchez v. Scribner, 428 F. App'x 742 (9th Cir. 2011)
(“Because [the petitioner’]s state habeas petition was procedurally deficient [when the California
Supreme Court denied his state habeas petition as procedurally deficient by citing,
inter alia,
Swain], the district court properly dismissed [his] federal habeas petition.”). “Conclusory
allegations which are not supported by a statement of specific facts do not warrant habeas
relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir.1994).
Emert’s allegations in this claim are convoluted and conclusory and do not establish
retaliatory conduct or vindictive prosecution. 	Emert theorizes that the 15-month delay in
prosecution “coupled with DAI Pena’s admissions of external pressure and that [Emert] had
‘pissed them off,’ strongly suggests that the prosecution was not a good faith enforcement of
PC § 278.5(a) but rather a retaliatory response to [Emert’s] protected First Amendment
activities.” Pet at 24. Emert’s conclusion is pure speculation and theory, without any supporting
facts or evidence. 	In addition, as discussed in Ground One, supra Section IV.A.3, there was
substantial evidence presented at the preliminary examination hearing that supported the trial
court’s determination that there was “probable cause” for the criminal charge. Moreover, as
discussed above, Investigator Peña’s statements were made before Emert’s arrest and during
Peña’s efforts to convince Emert to return his son to the custodial parent, Emert’s ex-wife, and
15 34 Cal. at 304.
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 21 of 25

22
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
were not exculpatory admissions. ECF No. 17-7, at 6, 15; see supra Section IV.C. 	Finally,
Investigator Peña testified during the preliminary examination hearing that the timing of Emert’s
arrest was based on the threatening statements made by Emert during the FBI call. ECF No. 17-
7, at 15-18; see supra Section IV.C.
Independently, because Emert voluntarily and intelligently pled guilty to child abduction,
he may not now seek federal habeas relief on the basis of pre-plea constitutional violations. See
Tollett, 411 U.S. at 266-67.
For all of these reasons, the Court finds that the California Supreme Court’s denial of this
claim was not contrary to, nor an unreasonable application of, clearly established federal law.
The Court therefore recommends Ground Five be denied.
F. Ground Six: Judicial Bias and Institutional Bias
In Ground Six, Emert asserts wide-spread institutional bias and judicial bias in violation
of his Fourteenth Amendment due process right. Pet 25-26. Emert challenges the “institutional
connection between the federal judiciary in the Southern District of California and the San Diego
District Attorney’s Office” and the judicial bias of three of the Superior Court judges. Id.
Respondent asserts that the claims are unexhausted and therefore must be denied. Resp
at 32. Respondent also argues that the “contentions are vague, unsupported by the record and
involve proceedings irrelevant to [Emert’s] custody.” Id.
Emert does not state that he presented these claims to the California Supreme Court (or
any other state court) and a review of the record confirms that they were not presented to the
California Supreme Court. See ECF No. 17-25.
As previously discussed, section 2254(b) bars the granting of habeas corpus relief “unless
it appears that the applicant has exhausted the remedies available in the courts of the State.”
See Gray, 518 U.S. at 161-63; 28 U.S.C. § 2254(b). This requirement gives the state courts the
opportunity to act on the claims before they are presented in a federal habeas petition.
O’Sullivan, 526 U.S. at 842. 	Because Emert did not present these claims to the California
Supreme Court, they are unexhausted and must be denied.
Additional legal doctrines also require the dismissal of Emert’s claims in Ground Six. With
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 22 of 25

23
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
regard to Emert’s first argument, he fails to identify how the marriage between a federal judge
and 	the 	District 	Attorney, 	as 	well 	as 	“numerous 	interlocking 	professional 	and 	personal
relationships among judicial actors, attorneys, and officials challenged by [Emert]” created an
appearance of impropriety or undermined the appearance of impartiality. 	See James, 24 F.3d
at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not
warrant habeas relief.”). 	Emert also fails to identify how the alleged impartiality impacted his
conviction or sentence, especially since he pled guilty to a felony crime. See Dominguez, 906
F.3d at 1137 (“§ 2254 requires a nexus between ‘the judgment of a State court’ and the ‘custody’
the petitioner contends is ‘in violation of the Constitution or laws or treaties of the United
States.’”). Similarly, the alleged appearance of impartiality occurred before Emert pled guilty and
therefore the claims are barred by Tollett. 411 U.S. at 266-67.
In his second argument, Emert alleges that two family court judges were biased against
him: one judge’s wife was “allegedly connected to [Emert’s] ex-wife” and another judge was
allegedly unfair to him in the family proceedings. Pet at 25. Again, Emert does not explain how
the alleged biases of these judges impacted his criminal conviction or sentence, especially in
light of the fact that he pled guilty. 	Because the claim does not satisfy the specificity
requirements and does not present a challenge to Emert’s conviction and sentence, the claim is
not reviewable in this habeas proceeding. See Dominguez, 906 F.3d at 1137 (Ҥ 2254 requires
a nexus between ‘the judgment of a State court’ and the ‘custody’ the petitioner contends is ‘in
violation of the Constitution or laws or treaties of the United States.’”); James, 24 F.3d at 26
(“Conclusory allegations which are not supported by a statement of specific facts do not warrant
habeas relief.”).
Third, Emert contends that Judge Katz refused to rule on a variety of motions and ruled
incorrectly on other motions. 	Pet at 25-26. 	Again, Emert does not articulate the basis for his
claims, did not present them to the California Supreme Court, and does not explain how they
impacted the validity of his guilty plea, so this allegation is not reviewable in this proceeding. In
addition, it appears that many of Judge Katz’s rulings involve state court law, which is not
reviewable in this proceeding. See Estelle, 502 U.S. at 67 (“[F]ederal habeas corpus relief does
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 23 of 25

24
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
not lie for errors of state law.”); Burrell, 172 F.3d at 875 (“To the extent [petitioner] challenges
the application of California state law, his claim is not cognizable in a federal habeas petition.”).
Moreover, the Supreme Court has held that “judicial rulings alone almost never constitute a valid
basis 	for 	a 	bias,” 	unless 	they 	either 	“relied 	upon 	knowledge 	acquired 	outside 	[judicial]
proceedings” or “displayed deep-seated and unequivocal antagonism that would render fair
judgment impossible.” Liteky v. United States, 510 U.S. 540, 555-56 (1994). Emert has not
established such a bias.
Accordingly, the Court recommends Ground Six be denied.
V. 	Request for Evidentiary Hearing
Emert requests an evidentiary hearing. 	Pet at 26-27. AEDPA “substantially restricts the
district court’s discretion to grant an evidentiary hearing.” Carr v. McDowell, 2024 WL 1121798,
at *1 (S.D. Cal. Mar. 14, 2024) (quoting Baja v. Ducharme, 187 F.3d 1075, 1077 (9th Cir. 1999)).
To determine whether to grant an evidentiary hearing under § 2254(e)(2), the court must first
“determine whether a factual basis exists in the record to support the petitioner’s claim.” Id.
(citing Cook v. Kernan, 948 F.3d 952, 970–71 (9th Cir. 2020)). If not, the court must “ascertain
whether the petitioner has ‘failed to develop the factual basis of the claim in State court.’” Id.
“Only when a petitioner demonstrates that he did not fail to develop the factual basis for his
claim in state court may a federal court proceed to consider whether a hearing is appropriate or
required.” Id. Significantly, the Ninth Circuit admonishes that “an evidentiary hearing is pointless
once the district court has determined that § 2254(d) precludes habeas relief.” Sully v. Ayers,
725 F.3d 1057, 1075 (9th Cir. 2013); see also Carr, 2024 WL 1121798, at *2 (holding that
because “[t]his Court ha[d] already determined that a sufficient factual basis existed in the
record to refute [the petitioner]'s habeas corpus claims . . . an evidentiary hearing [wa]s both
unnecessary and precluded”) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (a federal
court's review is limited to the state court record)).
Here, for the reasons set forth above, the Court already has determined there is sufficient
factual basis in the record to deny Emert’s habeas relief and claims. See Carr, 2024 WL 1121798,
at *2. 	Moreover, Emert has not satisfied the requirements of section 2254(e)(2), so an
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 24 of 25

25
25-cv-0820-TWR-BLM
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
evidentiary hearing is not authorized. Accordingly, Emert’s request for an evidentiary hearing is
denied.
VI. 	CONCLUSION AND RECOMMENDATION
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Judge
issue an order: 1) approving and adopting this Report and Recommendation, and 2) directing
that judgment be entered DENYING the amended petition.
IT IS HEREBY ORDERED that no later than April 6, 2026, any party to this action may
file written objections and serve a copy on all parties. The document should be captioned
“Objections to Report and Recommendation.”
IT IS FURTHER ORDERED that any reply to the objections must be filed and served on
all parties no later than April 20, 2026. The parties are advised that failure to file objections
within the specified time may waive the right to raise those objections on appeal of the Court’s
order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).
IT IS SO ORDERED.
Dated: 3/16/2026
Case 3:25-cv-00820-TWR-JAC Document 36 Filed 03/16/26 PageID.<pageID>
Page 25 of 25