Johnson v. Ryan et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION. Judge Duncan's 15 Report and Recommendation is accepted as set forth in this Order; the 7 Second Amended Petition for Writ of Habeas Corpus and request for an evidentiary hearing are denied without prejudice; the Clerk is directed to terminate this action; a certificate of appealability is denied with respect to each of the claims asserted in Mr. Johnson's Petition. Signed by Judge G Murray Snow on 5/5/10. (REW)

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NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

George Johnson, Petitioner, vs. Charles Ryan, Respondent.

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No. CV-09-959-PHX-GMS ORDER

Pending before the Court is the Petition for Writ of Habeas Corpus, filed by Petitioner George Johnson. (Dkt. # 7.) On April 15, 2010, Magistrate Judge David K. Duncan issued a Report and Recommendation ("R & R") in which he proposed that the Court deny the habeas petition without prejudice because Mr. Johnson's state-court petition for postconviction relief was still pending before the Maricopa County Superior Court. (Dkt. # 15.) Mr. Johnson timely filed Written Objections to the R & R on April 26, 2010 (Dkt. # 16); nonetheless, because those objections are without merit, the Court accepts the R & R as set forth below. STANDARD OF REVIEW Federal district courts "`may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].'" Carillo-Lozano v. Stolc, 669 F. Supp.2d 1074, 1076 (D. Ariz. 2009) (quoting 28 U.S.C. § 636(b)(1)); see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While a district judge "must review the

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magistrate judge's findings and recommendations de novo if objection is made," Schmidt v. Johnstone, 263 F. Supp.2d 1219, 1226 (D. Ariz. 2003)), no such review is necessary when the parties do not raise objections. Thomas v. Arn, 474 U.S. 140, 149 (1985) (holding that district courts are not required to conduct "any review at all . . . of any issue that is not the subject of objection"); see also 28 U.S.C. § 636(b)(1) ("[T]he court shall make a de novo determination of those portions of the [R & R] to which objection is made."); CarrilloLozano, 669 F. Supp. at 1076 (same). DISCUSSION State prisoners seeking to challenge their convictions or sentences through a writ of habeas corpus must first exhaust state judicial remedies by giving to the highest state court a fair opportunity to rule on the merits of each issue they wish to raise in federal court. 28 U.S.C. § 2254(b),(c). When a habeas petitioner has post-conviction proceedings pending in state court, the exhaustion requirement is not satisfied. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). Even if the issue that a habeas petitioner plans to raise in his federal petition has been finally settled in state court, and hence seemingly exhausted, the petitioner must await the outcome of any pending state-court challenges to his state conviction before proceeding in federal court. Id. In addition, a federal petitioner may not complete the exhaustion process in state court after filing a federal petition with then-unexhausted claims: "The appropriate time to assess whether a prisoner has exhausted his state remedies is when the federal habeas petition is filed, not when it comes on for hearing in the district court or court of appeals." Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citations omitted) (quoting Brown v. Maass, 11 F.3d 914, 915 (9th Cir.1993) (per curiam)); see also Domaingue v. Butterworth, 641 F.2d 8, 14 (1st Cir. 1981) (declining to take judicial notice of state court decision allegedly establishing exhaustion because that decision was rendered after the petitioner filed his federal habeas petition). In this case, Judge Duncan recommended that the Court deny Mr. Johnson's habeas petition because his "post-conviction proceedings are still pending" in Arizona State Court. (Dkt. # 15 at 2.) In his Written Objections, Mr. Johnson provides a minute entry from -2-

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Maricopa County Superior indicating that his state court proceedings were dismissed on April 9, 2010, six days before Judge Duncan issued the R & R. (See Dkt. # 16 at 2.) Yet, while it appears that Mr. Johnson's petition for collateral review is no longer pending in state court, Gatlin instructs that his habeas petition must be dismissed because "[t]he appropriate time to assess whether a prisoner has exhausted his state remedies is when the federal habeas petition is filed, not when it comes on for hearing in the district court or court of appeals." See 189 F.3d at 889. Mr. Johnson filed the instant Petition on October 2, 2009. (Dkt. # 6.) At that time, his state post-conviction relief proceedings were still pending. (See Dkt. # 16 at 2.) Accordingly, the R & R correctly determined that Mr. Johnson's habeas Petition should be dismissed for failure to exhaust.1 IT IS THEREFORE ORDERED: (1) Judge Duncan's R & R (Dkt. # 15) is ACCEPTED as set forth in this Order;. (2) Mr. Johnson's Petition for Writ of Habeas Corpus and request for an evidentiary hearing (Dkt. # 7) are DENIED without prejudice; (3) The Clerk of Court is directed to TERMINATE this action. (4) A certificate of appealability is DENIED with respect to each of the claims asserted in Mr. Johnson's Petition. DATED this 5th day of May, 2010.

Dismissal for failure to exhaust is neither a dismissal with prejudice nor a denial on the merits; therefore, should Mr. Johnson return to federal court with another petition after exhausting his state claims, the latter petition will not be considered a "second or successive petition" subject to heightened procedural scrutiny. Slack v. McDaniel, 529 U.S. 473, 485­86 (2000). -3-

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