Johnson v. The Alameda Superior Court of California

Filing 20

ORDER by Judge Claudia Wilken granting 14 Motion to Dismiss (cwlc1, COURT STAFF) (Filed on 9/20/2010)

Johnson v. The Alameda Superior Court of California

Doc. 20

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On January 29, 2009, Petitioner Darrell Johnson, a state prisoner incarcerated at Mule Creek State Prison, filed this pro se petition for a writ of habeas corpus pursuant to Title 28 U.S.C. § 2254. Respondent moves to dismiss the petition based on failure Petitioner filed an opposition, v. MICHAEL MARTELL, Acting Warden, Respondent. / DARRELL JOHNSON, Petitioner, No. C 09-0409 CW IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Docket No. 14)

to exhaust any of the claims.

consisting of a hand-written letter with several attachments. Respondent has not filed a reply. Having considered all the papers

filed by the parties, the Court GRANTS Respondent's motion to dismiss.

Dockets.Justia.com

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BACKGROUND On October 25, 2006, Petitioner was sentenced to seventeen years in state prison for forcible rape. (Pet. at 2.) In his

direct appeal to the California court of appeal, Petitioner argued that the trial court: 1) violated his federal due process rights by admitting K. Doe's testimony about Petitioner's prior sexual assault and by permitting the use of a victim support person during the victim's testimony; and 2) violated California law by admitting the victim's 911 call to the police as a spontaneous statement and by admitting expert testimony on rape trauma syndrome. Ex. A, Ct. of Appeal decision.) The court of appeal affirmed the conviction, and Petitioner sought review in the California Supreme Court, where he claimed that the trial court: 1) violated his federal due process rights by admitting K. Doe's testimony about a prior sexual assault committed by Petitioner; and 2) violated California law by admitting expert testimony on rape trauma syndrome. Review.) 2009. (Resp.'s Ex. A, Petition for (Resp.'s

The California Supreme Court denied review on January 14,

(Pet. at 5.) LEGAL STANDARD Prisoners in state custody who wish to challenge collaterally

in federal habeas proceedings either the fact or length of their confinement are first required to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. 28 U.S.C. § 2254 (b), (c). 2 Granberry

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v. Greer, 481 U.S. 129, 133-34 (1987); Rose v. Lundy, 455 U.S. 509, 515 (1982). The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity "to give the state the initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." omitted). Picard v. Connor, 404 U.S. 270, 275 (1971)(citations The exhaustion requirement is satisfied only if the

federal claim has been "fairly presented" to the state courts. Id.; Peterson v. Lampert, 319 F.3d 1153, 1155 (9th Cir. 2003)(en banc). A federal district court must dismiss a federal petition

containing any claim as to which state remedies have not been exhausted. Rhines v. Webber, 544 U.S. 269, 273-74 (2005).

For purposes of exhaustion, pro se petitions may, and sometimes should, be read differently from counseled petitions. Sandgathe v. Maass, 314 F.3d 371, 378 (9th Cir. 2002) (neither confused arguments nor poor lawyering will necessarily defeat a pro se petitioner's otherwise adequate efforts to assert a federal claim in state court); Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (en banc) ("[T]he complete exhaustion rule is not to trap the unwary pro se prisoner."). DISCUSSION I. Exhaustion Respondent moves to dismiss the petition on the ground that all the claims raised are unexhausted. The petition contains the

following claims: 1) ineffective assistance of counsel in violation of the Sixth Amendment for failing to object to juror misconduct involving the use of a laptop computer; 2) prosecutorial misconduct 3

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in violation of the Fourteenth Amendment, based on the presentation of false testimony and the use of a photograph taken five hours after the police first arrived on the scene; 3) improper admission of hearsay in violation of California Evidence Code section 1240 by the admission of the victim's 911 call to police; and 4) improper admission of perjured testimony of K. Doe in violation of the Fourteenth Amendment. As mentioned previously, Petitioner only raised two claims before the California Supreme Court: 1) that the trial court erred in admitting testimony about a prior sexual assault; and 2) that the trial court erred in admitting prejudicial rape trauma syndrome evidence. petition. Neither of these claims are in the federal habeas Thus, only unexhausted claims are raised in the federal

habeas petition. Accordingly, the Court GRANTS Respondent's motion to dismiss. II. Certificate of Appealability The federal rules governing habeas cases brought by state prisoners have recently been amended to require a district court that dismisses or denies a habeas petition to grant or deny a certificate of appealability in its ruling. See Rule 11(a), Rules

Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (effective December 1, 2009). For the reasons stated above, Petitioner has not shown "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." 529 U.S. 473, 484 (2000). appealability is DENIED. 4 Slack v. McDaniel,

Accordingly, a certificate of

1 2

CONCLUSION The instant action must be dismissed because none of

3 Petitioner's claims in his federal habeas petition have been 4 exhausted in state court. The Court GRANTS Respondent's motion to

5 dismiss (Docket No. 14) and DENIES a certificate of appealability. 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Dated September 20, 2010 CLAUDIA WILKEN United States District Judge IT IS SO ORDERED

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 v. DARRELL JOHNSON, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV09-00409 CW CERTIFICATE OF SERVICE

MICHAEL MARTEL, Acting Warden, et al, Defendants. /

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 September 20, 2010, 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 14 envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located 15 in the Clerk's office. 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Darrell Johnson F49735 C-14-217- Up Mule Creek State Prison P.O. Box 409060 Ione, CA 95640 Dated: September 20, 2010 Richard W. Wieking, Clerk By: Ronnie Hersler, Adm. Law Clerk