Johnson v. Swarthout et al

Filing 25

ORDER by Judge Claudia Wilken DENYING 23 MOTION TO DISMISS AND DIRECTING PETITIONER TO COMPLY WITH COURT ORDER OR FACE DISMISSAL FOR FAILURE TO PROSECUTE. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 3/19/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PAUL SAMUEL JOHNSON,

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No. C 11-6688 CW (PR)

Petitioner,

ORDER DENYING MOTION TO
DISMISS AND DIRECTING
PETITIONER TO COMPLY
WITH COURT ORDER OR
FACE DISMISSAL FOR
FAILURE TO PROSECUTE

v.
STEVE FREITAS, SONOMA COUNTY
SHERIFF,
Respondent.
________________________________/

United States District Court
For the Northern District of California

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Petitioner Paul Samuel Johnson filed this pro se petition for

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a writ of habeas corpus when he was incarcerated.

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2012, the Court directed Respondent to answer the petition.

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October 19, 2012, Petitioner notified the Court (in one of his

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other then-pending actions) that he was being released from

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custody and provided a new mailing address.

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Respondent filed a motion to dismiss the petition as untimely and

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served it on Petitioner at his new mailing address.

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has not opposed the motion or otherwise communicated with the

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Court in this case since September 26, 2012.

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Petitioner

BACKGROUND
In 2009, Petitioner was convicted by a jury in Sonoma County
Superior Court of threatening a public official.

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to three years in state prison.

He was sentenced

Resp’t Mot. Dismiss, Ex. A at 1.

The conviction was affirmed by the California Court of Appeal

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on November 18, 2010.

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review on January 26, 2011.

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On

On December 19, 2012,

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On August 7,

Id.

The California Supreme Court denied
Id. Exs. B & C.

Thereafter, Petitioner filed seven habeas corpus petitions in

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the California Supreme Court, all of which were denied.

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Exs. D-Q.

He filed the present petition on December 8, 2011.

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See id.

DISCUSSION
A.

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Legal Standard
Prisoners in state custody who wish to challenge collaterally

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in federal habeas proceedings either the fact or length of their

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confinement are first required to exhaust state judicial remedies,

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either on direct appeal or through collateral proceedings, by

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presenting the highest state court available with a fair

United States District Court
For the Northern District of California

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opportunity to rule on the merits of each and every claim they

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seek to raise in federal court.

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v. Lundy, 455 U.S. 509, 515 (1982).

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dismiss a petition containing any claim as to which state remedies

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have not been exhausted.

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(2005).

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B.

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28 U.S.C. § 2254 (b), (c); Rose
A federal district court must

Rhines v. Webber, 544 U.S. 269, 273-74

Analysis
Petitioner raises three claims in the present petition:

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(1) the evidence presented at trial was insufficient to support

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the conviction; (2) the trial court erroneously admitted evidence

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of prior uncharged bad acts; and (3) the trial court erred by not

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granting his motion to dismiss the information under California

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Penal Code section 995.

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Respondent argues the petition must be dismissed as

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unexhausted because Petitioner did not present his third claim to

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the California Supreme Court.

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exhibits submitted by Respondent in support of the present motion,

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agrees the claim is unexhausted.

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unexhausted is not warranted, however, because the claim is
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The Court, having reviewed the

Dismissal of the petition as

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subject to dismissal for failure to state a cognizable ground for

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federal habeas corpus relief.

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A person in custody pursuant to the judgment of a state court

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can obtain a federal writ of habeas corpus only on the ground that

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he is in custody in violation of the Constitution or laws or

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treaties of the United States.

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of habeas corpus is available under § 2254(a) “only on the basis

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of some transgression of federal law binding on the state courts.”

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Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing

28 U.S.C. § 2254(a).

Thus, a writ

United States District Court
For the Northern District of California

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Engle v. Isaac, 456 U.S. 107, 119 (1982)).

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violations of state law or for alleged error in the interpretation

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or application of state law.

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67-68 (1991).

It is unavailable for

See Estelle v. McGuire, 502 U.S. 62,

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Petitioner’s claim that the trial court erred by not granting

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his motion to dismiss the information alleges a violation of state

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laws and procedures, and not the violation of a right secured by

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the United States Constitution or federal law.

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claim is DISMISSED as not cognizable in federal habeas corpus.

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Because the petition no longer includes an unexhausted claim,

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Respondent’s motion to dismiss the petition as unexhausted is

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DENIED.

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C.

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Therefore, this

Further Proceedings
Although the petition will not be dismissed as unexhausted,

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the Court will not require Respondent to file an answer to the

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petition at this time.

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motion to dismiss or communicated with the Court in this case for

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more than five months.

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that Petitioner was released from custody more than four months
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As noted, Petitioner has not opposed the

Additionally, the Court was made aware

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ago only when he filed a notice of change of address in another of

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his then-pending cases.

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case on August 7, 2012, the Court explained:

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In the Order to Show Cause issued in this

It is Petitioner’s responsibility to prosecute this
case. Petitioner must keep the Court and Respondent
informed of any change of address and must comply with
the Court’s orders in a timely fashion. Petitioner must
also serve on Respondent’s counsel all communications
with the Court by mailing a true copy of the document to
Respondent’s counsel.

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Docket no. 17 at 2:23-28.
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Based on the above, and in the interests of the just and
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United States District Court
For the Northern District of California

efficient resolution of this matter, the case will not proceed
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further until Petitioner notifies the Court and Respondent of his
continued intent to prosecute this action, as set forth below.

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CONCLUSION
For the foregoing reasons, the Court orders as follows:
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Respondent’s motion to dismiss the petition as

unexhausted is DENIED.
2.

No later than seven days from the date of this Order

Petitioner shall inform the Court and notify Respondent’s counsel
of his current address and whether he intends to proceed with the
prosecution of this action.
Petitioner must file his notice with the Court and also serve
his notice on Respondent’s counsel.
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If Petitioner states his intention to go forward with

this action, the Court will set a schedule for further briefing on
the merits of the petition.
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If Petitioner fails to comply with this Order, this

action will be dismissed without prejudice for failure to

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prosecute.

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This Order terminates Docket no. 23.

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IT IS SO ORDERED.

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Dated: 3/19/2013

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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