Johnson v. Swarthout et al

Filing 25


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 PAUL SAMUEL JOHNSON, 5 6 7 8 9 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 10 11 Petitioner Paul Samuel Johnson filed this pro se petition for 12 a writ of habeas corpus when he was incarcerated. 13 2012, the Court directed Respondent to answer the petition. 14 October 19, 2012, Petitioner notified the Court (in one of his 15 other then-pending actions) that he was being released from 16 custody and provided a new mailing address. 17 Respondent filed a motion to dismiss the petition as untimely and 18 served it on Petitioner at his new mailing address. 19 has not opposed the motion or otherwise communicated with the 20 Court in this case since September 26, 2012. 21 22 Petitioner BACKGROUND In 2009, Petitioner was convicted by a jury in Sonoma County Superior Court of threatening a public official. 24 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 26 on November 18, 2010. 27 review on January 26, 2011. 28 On On December 19, 2012, 23 25 On August 7, Id. The California Supreme Court denied Id. Exs. B & C. Thereafter, Petitioner filed seven habeas corpus petitions in 1 the California Supreme Court, all of which were denied. 2 Exs. D-Q. He filed the present petition on December 8, 2011. 3 4 See id. DISCUSSION A. 5 Legal Standard Prisoners in state custody who wish to challenge collaterally 6 in federal habeas proceedings either the fact or length of their 7 confinement are first required to exhaust state judicial remedies, 8 either on direct appeal or through collateral proceedings, by 9 presenting the highest state court available with a fair United States District Court For the Northern District of California 10 opportunity to rule on the merits of each and every claim they 11 seek to raise in federal court. 12 v. Lundy, 455 U.S. 509, 515 (1982). 13 dismiss a petition containing any claim as to which state remedies 14 have not been exhausted. 15 (2005). 16 B. 17 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: 18 (1) the evidence presented at trial was insufficient to support 19 the conviction; (2) the trial court erroneously admitted evidence 20 of prior uncharged bad acts; and (3) the trial court erred by not 21 granting his motion to dismiss the information under California 22 Penal Code section 995. 23 Respondent argues the petition must be dismissed as 24 unexhausted because Petitioner did not present his third claim to 25 the California Supreme Court. 26 exhibits submitted by Respondent in support of the present motion, 27 agrees the claim is unexhausted. 28 unexhausted is not warranted, however, because the claim is 2 The Court, having reviewed the Dismissal of the petition as 1 subject to dismissal for failure to state a cognizable ground for 2 federal habeas corpus relief. 3 A person in custody pursuant to the judgment of a state court 4 can obtain a federal writ of habeas corpus only on the ground that 5 he is in custody in violation of the Constitution or laws or 6 treaties of the United States. 7 of habeas corpus is available under § 2254(a) “only on the basis 8 of some transgression of federal law binding on the state courts.” 9 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 10 Engle v. Isaac, 456 U.S. 107, 119 (1982)). 11 violations of state law or for alleged error in the interpretation 12 or application of state law. 13 67-68 (1991). It is unavailable for See Estelle v. McGuire, 502 U.S. 62, 14 Petitioner’s claim that the trial court erred by not granting 15 his motion to dismiss the information alleges a violation of state 16 laws and procedures, and not the violation of a right secured by 17 the United States Constitution or federal law. 18 claim is DISMISSED as not cognizable in federal habeas corpus. 19 Because the petition no longer includes an unexhausted claim, 20 Respondent’s motion to dismiss the petition as unexhausted is 21 DENIED. 22 C. 23 Therefore, this Further Proceedings Although the petition will not be dismissed as unexhausted, 24 the Court will not require Respondent to file an answer to the 25 petition at this time. 26 motion to dismiss or communicated with the Court in this case for 27 more than five months. 28 that Petitioner was released from custody more than four months 3 As noted, Petitioner has not opposed the Additionally, the Court was made aware 1 ago only when he filed a notice of change of address in another of 2 his then-pending cases. 3 case on August 7, 2012, the Court explained: 4 5 6 7 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. 8 Docket no. 17 at 2:23-28. 9 Based on the above, and in the interests of the just and 10 United States District Court For the Northern District of California efficient resolution of this matter, the case will not proceed 11 12 further until Petitioner notifies the Court and Respondent of his continued intent to prosecute this action, as set forth below. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CONCLUSION For the foregoing reasons, the Court orders as follows: 1. 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. 3. 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. 4. If Petitioner fails to comply with this Order, this action will be dismissed without prejudice for failure to 28 4 1 prosecute. 2 This Order terminates Docket no. 23. 3 IT IS SO ORDERED. 4 5 6 Dated: 3/19/2013 CLAUDIA WILKEN United States District Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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