Johnson

Filing 17

ORDER DISMISSING CASE. Signed by Judge James Donato on 9/3/14. (lrcS, COURT STAFF) (Filed on 9/4/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEITH JOHNSON,

Case No. 14-cv-01869-JD

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Plaintiff,

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ORDER OF DISMISSAL
v.

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United States District Court
Northern District of California

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KAMALA HARRIS, et al.,

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Defendants.

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Petitioner has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §

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2254. The original petition was dismissed with leave to amend and petitioner has filed an

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amended petition

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DISCUSSION
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STANDARD OF REVIEW
This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v.

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Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of

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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court

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must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting

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each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’

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pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility

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of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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II.

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LEGAL CLAIMS
Petitioner alleges that he was unlawfully subjected to a parole hold for 6 months from

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February 6, 2013, to August 22, 2013, even though he was previously discharged from parole on

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June 4, 2011. He was arrested for a new crime on February 6, 2013, and placed on a parole hold

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even though he was not on parole. As a result of the parole hold he was unable to post bail. A
parole revocation hearing occurred and he was held in jail until August 22, 2013. Plaintiff alleges

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United States District Court
Northern District of California

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that counsel was ineffective for failing to convey to the court that he was not on parole.

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Petitioner filed a habeas petition in the Superior Court of San Francisco. According to the

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Superior Court of San Francisco, petitioner appeared for a preliminary hearing on March 4, 2013,

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and bail was set at $250,000. Petition at 14. A parole revocation hearing was held on March 26,

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2013, and the parole hold was removed. Id. at 15. The Superior Court denied the petition noting

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that, while there was at some point a hold on his parole, there was no longer any hold in effect. Id.

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An application for a federal writ of habeas corpus filed by a prisoner who is in state

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custody pursuant to a judgment of a state court may not be granted unless the prisoner has first

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exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings, by

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presenting the highest state court available with a fair opportunity to rule on the merits of each and

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every issue he or she seeks to raise in federal court. See 28 U.S.C. § 2254(b),(c); Granberry v.

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Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the burden of pleading exhaustion in his or her

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habeas petition. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).

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A petitioner fully and fairly presents a claim to the state courts “if he presents the claim (1)

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to the correct forum; (2) through the proper vehicle; and (3) by providing the factual and legal

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basis for the claim. Full and fair presentation additionally requires a petitioner to present the

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substance of his claim to the state courts, including a reference to a federal constitutional

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guarantee and a statement of facts that entitle the petitioner to relief.” Scott v. Schriro, 567 F.3d

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573, 582 (9th Cir. 2009) (citations omitted).

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This petition will be dismissed without prejudice as petitioner has not exhausted his claim

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with the California Supreme Court and based on petitioner’s own exhibits it appears that bail was

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provided and the parole hold was removed.
CONCLUSION

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The petition is DISMISSED for the reasons set forth above. Because reasonable jurists

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would not find the result here debatable, a certificate of appealability (“COA”) is DENIED. See

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Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for COA). The clerk shall close the

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United States District Court
Northern District of California

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file.
IT IS SO ORDERED.
Dated: September 3, 2014
______________________________________
JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEITH JOHNSON,

Case No. 14-cv-01869-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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KAMALA HARRIS, et al.,
Defendants.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 9/4/2014, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Keith Johnson
P.O. Box 67
#13662509
#339840
San Bruno, CA 94066

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Dated: 9/4/2014
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Richard W. Wieking
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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