Johnson v. Chappell

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 12/15/14 ORDERING that Petitioners application to proceed in forma pauperis 5 is granted; and this action is dismissed without prejudice.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TEDDINO JOHNSON,

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Petitioner,

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No. 2:14-cv-2513 KJN P

v.

ORDER

K. CHAPPELL, Warden,

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Respondent.

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Petitioner, a state prisoner proceeding without counsel, has filed an application for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner consented to proceed before the

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undersigned for all purposes. See 28 U.S.C. § 636(c). On December 4, 2014, petitioner filed a

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request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See

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28 U.S.C. § 1915(a).
Petitioner contends that in representing petitioner in connection with the 2000 conviction,

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defense counsel failed to “adequately challenge petitioner’s prior conviction(s).” (ECF No. 1 at

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4.) Petitioner contends that defense counsel’s failure to argue the sufficiency of evidence of the

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‘strike’ prior was an unreasonable determination . . . under the Sixth Amendment.” (ECF No. 1 at

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14.)
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The court’s records reveal that petitioner has previously filed an application for a writ of

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habeas corpus attacking the 2000 conviction and sentence1 challenged in this case. The previous

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application was filed on June 16, 2003, and was denied on the merits on January 8, 2007.

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Johnson v. Woodford, Case No. 2:03-cv-1281 LKK KJM P (E.D. Cal.) (Eighth Amendment

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challenge to “three strikes” sentence based on conviction for possession of cocaine denied).

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Before petitioner can proceed with the instant application, he must move in the United States

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Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the

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application. 28 U.S.C. § 2244(b)(3).2 Therefore, petitioner’s application must be dismissed

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without prejudice to its re-filing upon obtaining authorization from the United States Court of

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Appeals for the Ninth Circuit.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s application to proceed in forma pauperis (ECF No. 5) is granted; and

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2. This action is dismissed without prejudice.

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Dated: December 15, 2014

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/john2513.succ

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Petitioner was convicted on July 26, 2000, for violation of California Health & Safety Code
§ 11350(a) (possession of cocaine), and after petitioner waived jury trial on the prior conviction
allegations, the trial court found the three strike allegations to be true. (ECF No. 1 at 23.) On
October 27, 2000, petitioner was sentenced to 25 years to life in state prison pursuant to
California Penal Code § 667(e)(2)(A)(ii). (ECF No. 1 at 23.) The three prior strike allegations
were: (1) an April 18, 1977 conviction for robbery; (2) a December 22, 1983 conviction for rape;
and (3) a September 25, 1991 conviction for robbery. (ECF No. 1 at 29-30.) The state court
found each of these prior felony convictions to be for serious felonies, within the meaning of
California Penal Code Section 1192.7(c). (ECF No. 1 at 29-30.)
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It appears that petitioner seeks to challenge the prior rape conviction in an effort to become
eligible for application of Proposition 36. (ECF No. 1 at 25.) California Proposition 36, known
as the “Substance Abuse and Crime Prevention Act of 2000,” allows qualifying defendants
convicted of non-violent drug possession offenses to receive probation in lieu of incarceration.
Cal. Penal Code Sections 1210, 3063.1; Cal. Health & Safety Code § 11999.4. On February 25,
2013, the state court denied petitioner’s motion for recall of the “third-strike” sentence and
resentencing under California Penal Code Section 1170.126, due to petitioner’s prior rape
conviction. (ECF No. 1 at 20.)
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