Ryan James Johnson v. Stu Sherman

Filing 27

MINUTE ORDER(IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato,Order Requiring Response to Petition, Respondent is instructed to file and serve an Answer to the Petition addressing the merits of all six of the Petition's claims within 30 days of thedate of this order.CV- (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5902-CAS (KK)

Title

RYAN JAMES JOHNSON V. STU SHERMAN

Present: The
Honorable

Date

March 2, 2015

Kenly Kiya Kato, United States Magistrate Judge

Deb Taylor

n/a

n/a

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

n/a

n/a

Proceedings:

(In Chambers) Order Requiring Response to Petition

I.
PROCEDURAL BACKGROUND
On July 29, 2014, Petitioner Ryan James Johnson filed a Petition for Writ of
Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254. Petitioner presents
six grounds for relief: (1) Petitioner was denied due process when the trial court
convicted him of murder without finding that he personally harbored malice
aforethought; (2) the trial court denied Petitioner's due process by failing to instruct the
jury that it must find he personally harbored malice aforethought in order to secure a
conviction of murder; (3) Petitioner was denied due process when the trial court
convicted him of murder without finding he acted willfully or with premeditation and
deliberation; (4) Petitioner was denied due process when the trial court failed to instruct
the jury that it must find Petitioner's co-conspirator ("Claim Four"), Baker-Riley,
committed his provocative acts in furtherance of the common design to commit robbery
in order to find Petitioner guilty of murder; (5) trial counsel rendered ineffective
assistance of counsel when he failed to move for and object to instructions on elements of
the charged offense; and (6) trial counsel rendered ineffective assistance of counsel in
failing to present a defense and move for instructions on a lesser included offense.
Petition ("Pet.") at 5-6.
On October 27, 2014, Respondent filed a Motion to Dismiss, arguing Claim Four is
unexhausted. (ECF Docket No. ("dkt.") 18). In the Motion, Respondent requested the
Petition be dismissed without prejudice as a mixed petition unless Petitioner deleted
Claim Four. (Id.). On November 4, 2014, the Court issued an Order to Show Cause Why
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5902-CAS (KK)

Date

Title

March 2, 2015

RYAN JAMES JOHNSON V. STU SHERMAN

Petition Should Not Be Dismissed as Mixed ("OSC"), finding Claim Four to be
unexhausted and allowing Petitioner to opt between several options to address the
exhaustion issue. (Dkt. 20). The Court subsequently found Respondent's Motion moot,
given the Court's OSC concerning Petitioner's failure to exhaust Claim Four. (Dkt. 21).
On November 17, 2014, Petitioner responded to the Court's OSC, contending
Claim Four is exhausted because he raised it in a state habeas corpus petition filed in the
California Supreme Court on January 14, 2014 (lodged with the Court by Respondent as
Lodged Document ("Lodg.") No. 18). (Dkt. 22). In the alternative, Petitioner indicated
he wished to voluntarily dismiss Claim Four if the Court found it unexhausted. (Id.).
Hence, Petitioner also filed a Notice of Dismissal of Claim Four pursuant to Federal Rule
of Civil Procedure 41, presumably to take effect if the Court found Claim Four
unexhausted. (Dkt. 23).
II.
DISCUSSION
A state prisoner must exhaust his or her state court remedies before a federal court
may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v.
Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). To satisfy the
exhaustion requirement, a habeas petitioner must fairly present his or her federal claims
in the state courts in order to give the State the opportunity to pass upon and correct
alleged violations of the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365,
115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (per curiam).
For a petitioner in California state custody, this generally means the petitioner must
have fairly presented his or her claims in a petition to the California Supreme Court. See
O’Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189
F.3d 882,888 (9th Cir. 1999) (applying O’Sullivan to California). A claim has been fairly
presented if the petitioner has both “adequately described the factual basis for [the]
claim” and “identified the federal legal basis for [the] claim.” Gatlin, 189 F.3d at 888.
The inclusion of both exhausted and unexhausted claims in a federal habeas
petition renders it mixed and subject to dismissal without prejudice. See Rose v. Lundy,
455 U.S. 509, 522, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5902-CAS (KK)

Date

Title

March 2, 2015

RYAN JAMES JOHNSON V. STU SHERMAN

Here, Petitioner contends he exhausted Claim Four in his January 14, 2014 state
habeas petition in the California Supreme Court. In the petition, Petitioner claimed he
was deprived of effective assistance of counsel because his trial counsel failed to request
instructions informing the jury it had to determine if the perpetrator to the crime
committed his provocative acts in furtherance of a common design to commit robbery in
order to find Petitioner guilty of murder (i.e. the subject of Claim Four). Lodg. No. 18 at
15-16.1 When explaining the legal basis for this claim, Petitioner noted the failure to
provide these instructions violated Petitioner's Fifth and Fourteenth Amendment due
process rights. Id. at 19. In support, Petitioner cited a number of U.S. Supreme Court
decisions holding instructional error can violate a criminal defendant's due process rights.
Id. (citing Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999);
Osborne v. Ohio, 495 U.S. 103, 110 S. Ct. 1691, 109 L. Ed. 2d 98 (1990); Mathews v.
United States, 485 U.S. 58, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988)).
The Court concludes such language raises a strong possibility Claim Four is
exhausted. See Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2004) (holding "that
citation to either a federal or state case involving the legal standard for a federal
constitutional violation is sufficient to establish exhaustion"). While it is unclear whether
such language was intended to support Petitioner's ineffective assistance of counsel claim
or to assert an independent instructional error claim predicated on a due process violation,
the Court concludes such language may reasonably be construed as asserting an
instructional error claim. Hence, out of an abundance of caution, the Court declines to
rule on whether Claim Four has been exhausted at this time and instructs Respondent to
file an Answer responding to the merits of all six claims in the instant Petition.2 See 28
U.S.C. § 2254 (b)(2) (district court has authority to deny unexhausted claims on their
merits).
///

1

The Court refers to the pages of the state habeas petition as if they were consecutively

paginated.
2

The Court's Order shall not bar Respondent from re-asserting its argument that Claim
Four is unexhausted in its Answer.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 14-5902-CAS (KK)

Date

Title

March 2, 2015

RYAN JAMES JOHNSON V. STU SHERMAN

IT IS THEREFORE ORDERED:
1.

CV-90 (06/04)

Respondent is instructed to file and serve an Answer to the Petition
addressing the merits of all six of the Petition's claims within 30 days of the
date of this order.

CIVIL MINUTES - GENERAL

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