Johnson v. Swarthout et al

Filing 35

ORDER by Judge Claudia Wilken DENYING PETITIONER'S 30 MOTION TO ADD NEWLY EXHAUSTED CLAIMS AND GRANTING EXTENSION OF TIME TO FILE TRAVERSE. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 10/7/2013)

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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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United States District Court
For the Northern District of California

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Petitioner,
v.
GREGORY J. AHERN, ALAMEDA COUNTY
SHERIFF,
Respondent.
________________________________/

No. C 11-6688 CW (PR)
ORDER DENYING
PETITIONER'S MOTION TO
ADD NEWLY EXHAUSTED
CLAIMS AND GRANTING
EXTENSION OF TIME TO
FILE TRAVERSE
Doc. no. 30

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On December 8, 2011, Petitioner Paul Samuel Johnson filed

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this pro se petition for a writ of habeas corpus based on an

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incident that occurred when he was incarcerated.

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2013, Petitioner filed a motion to add newly exhausted claims.

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June 3, 2013, Respondent filed an answer and response to the

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petition.1

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July 15, 2013, but he has not filed it.

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Petitioner's papers in support of his motion to file newly

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exhausted claims, the Court denies the motion.

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appearing, the Court grants Petitioner an extension of time in

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which to file his traverse.

On April 16,

The deadline for Petitioner to file his traverse was
Having considered

For good cause

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In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of
the Federal Rules of Civil Procedure, the Clerk of the Court is
directed to substitute Sheriff Gregory J. Ahern as Respondent
because he is Petitioner's current custodian.

On

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DISCUSSION
I. Background

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In his motion, Petitioner indicates that he has many
exhausted claims that he did not include in his original petition

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and now wants to add them.

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(1) actual innocence; (2) prosecutorial misconduct for putting on

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perjured testimony and dismissing the only juror who was a "person

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of color;" (3) judicial misconduct for failure to dismiss the case

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for lack of evidence; (4) ineffective assistance of counsel for

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United States District Court
For the Northern District of California

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failing to call Petitioner's witnesses who would have proved his

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innocence; (5) ineffective assistance of appellate counsel for

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failing to assert the above-mentioned claims on direct appeal; and

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(6) "perjured testimony by a witness."

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The "newly exhausted claims" include:

Respondent submits exhibits in support of his response to

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Petitioner's petition which show that, from April 21, 2011 through

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April 26, 2012, Petitioner filed seven petitions for a writ of

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habeas corpus in the California Supreme Court, all of which were

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summarily denied.

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See Exhs. 12-24.

On April 21, 2011, Petitioner filed his first petition for a

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writ of habeas corpus in the California Supreme Court, which

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presented the claim that Petitioner's sentence was illegal.

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12.

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comment on June 8, 2011.

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Exh.

The California Supreme Court denied this petition without
Exh. 13.

On June 28, 2011, Petitioner filed his second petition which

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presented the two claims that (1) the trial court erred by

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permitting the admission of hearsay evidence and (2) insufficient

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evidence supported his conviction.

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2011, the California Supreme Court denied the petition with a
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Exh. 16.

On September 21,

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citation to In re Clark, 5 Cal. 4th 750, 767-69 (1993).

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The citation to Clark indicated that the Court's denial was based

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upon the fact that this was a successive petition which presented

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piecemeal claims.

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Exh. 17.

Id.

On June 29, 2011, Petitioner submitted his third petition

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which repeated the claim that his sentence was cruel and unusual

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and, for the first time, alleged a due process violation based on

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the fact that, at his rules violation hearing, his right to

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present witnesses was violated.

Exh. 18.

The California Supreme

United States District Court
For the Northern District of California

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Court denied this petition without comment on September 21, 2011.

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Exh. 19.

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On August 30, 2011, Petitioner submitted his fourth petition

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which asserted the claim that a witness testified untruthfully.

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Exh. 20.

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California Supreme Court on September 21, 2011.

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This petition was denied without comment by the
Exh. 21.

On October 11, 2011, Petitioner submitted his fifth petition

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which again presented the due process claim based on the denial of

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his right to present witnesses.

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Court denied this petition on November 2, 2011 with a citation to

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In re Miller, 17 Cal. 2d 734, 735 (1941).

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that petitioners shall not file repeated petitions based on the

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same grounds set forth in previous petitions without presenting a

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change in the facts or the law that substantially affects the

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rights of the petitioner.

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Exh. 22.

The California Supreme

Exh. 23.

Miller holds

Id.

On November 7, 2011, Petitioner filed his sixth petition

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which repeated previous claims.

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Court denied this petition on December 21, 2011 with a citation to

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Clark, 5 Cal. 4th at 767-69.

Exh. 24.

Exh. 25.
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The California Supreme

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On April 26, 2012, Petitioner filed his seventh petition

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which asserted the previous cruel and unusual punishment claim.

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Exh. 14.

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June 29, 2012 citing People v. Duvall, 9 Cal. 4th 464, 474 (1995);

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In re Dexter, 25 Cal. 3d 921, 925-26 (1979); and In re Swain, 34

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Cal. 2d 300, 304 (1949).

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The California Supreme Court denied this petition on

Exh. 15.

The Court's citation to Duvall indicated that the petition

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did not plead sufficient facts to warrant relief, the citation to

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Dexter indicated that Petitioner had failed to exhaust his claim,

United States District Court
For the Northern District of California

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and the citation to Swain indicated that the allegations in the

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petition were vague, conclusory and insufficient.

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II. Analysis

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An application for a federal writ of habeas corpus filed by a

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prisoner who is in state custody pursuant to a judgment of a state

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court may not be granted unless the prisoner has first exhausted

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

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collateral proceedings, by presenting the highest state court

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available with a fair opportunity to rule on the merits of each

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and every issue he or she seeks to raise in federal court.

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U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34

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(1987).

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his habeas petition.

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Cir. 1981).

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state courts if he presents the claim (1) to the correct forum,

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§ 2254(c); (2) in the proper manner, Castille v. Peoples, 489 U.S.

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346, 351 (1989); and (3) includes the factual and legal basis for

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the claim, Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.1999).

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Full and fair presentation requires a reference to a federal
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The petitioner has the burden of pleading exhaustion in
Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th

A petitioner fully and fairly presents a claim to the

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constitutional guarantee and a statement of facts that entitle the

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petitioner to relief.

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Picard v. Connor, 404 U.S. 270, 278 (1971).

A review of the many petitions Petitioner submitted to the

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California Supreme Court reveals that he did not present to that

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Court the claims that he now asserts are exhausted.

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his motion to add claims is denied.

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III. Extension of Time for Traverse

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Accordingly,

Petitioner's traverse is more than three months overdue.
Petitioner may be waiting for the Court to rule on his motion to

United States District Court
For the Northern District of California

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add claims before filing the traverse.

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interests of justice, the Court grants Petitioner leave to file

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his traverse within twenty-eight days from the date of this Order.

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CONCLUSION

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Based on the foregoing, Petitioner's motion to add newly

Therefore, in the

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exhausted claims is DENIED.

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his traverse within twenty-eight days from the date of this Order.

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The Clerk of the Court is directed to substitute Sheriff Gregory

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J. Ahern as Respondent.

Petitioner is granted leave to file

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This Order terminates docket number 30.

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IT IS SO ORDERED.

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Dated: 10/7/2013

CLAUDIA WILKEN
United States District Judge

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