Johnson v. Martinez

Filing 14

ORDER Dismissing Second 11 Amended Petition Without Prejudice. Signed by Judge Michael M. Anello on 9/26/24.(aas) (All non-registered users served via U.S. Mail Service)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

DERRICK L. JOHNSON,
Petitioner,

12
13

v.

14

KELLY MARTINEZ, et al.,

15

Case No.: 24-cv-0981-MMA (JLB)
ORDER DISMISSING SECOND
AMENDED PETITION WITHOUT
PREJUDICE

Respondents.

[Doc. No. 11]

16
17

The Court has on two prior occasions dismissed this federal habeas action without

18

prejudice and the case is currently closed and on appeal. See Doc. Nos. 2, 7, 8. Presently

19

before the Court is Petitioner’s Second Amended Petition (“SAP”). Doc. No. 11. For the

20

reasons discussed below, the Court concludes it has jurisdiction over the action despite

21

the appeal and again DISMISSES this habeas action without prejudice.

22
23

I. RELEVANT PROCEDURAL HISTORY
On June 3, 2024, Petitioner filed a Petition for a Writ of Habeas Corpus pursuant to

24

28 U.S.C. § 2254. Doc. No. 1. On June 11, 2024, the Court dismissed the case without

25

prejudice based on Petitioner’s failure to satisfy the filing fee requirement, failure to use

26

the proper form, and failure to allege exhaustion of state judicial remedies. Doc. No. 2.

27

The Court notified Petitioner that to proceed with this habeas case, he must, on or before

28

August 12, 2024, submit a copy of the Court’s June 11, 2024, Order along with both: (1)
1
24cv0981 MMA (JLB)

1

a completed Amended Petition form that cured the pleading deficiencies outlined in that

2

Order and (2) either the $5.00 fee or adequate proof of Petitioner’s inability to pay the

3

fee. Id. at 3.

4

On July 16, 2024, Petitioner filed (1) a document entitled “Motion,” which was

5

docketed as a motion for relief from the Court’s Order dismissing the case and a motion

6

for a temporary restraining order and (2) an Application for a Writ of Habeas Corpus,

7

which was docketed as an Amended Petition. Doc. Nos. 5, 6. On July 18, 2024, the

8

Court issued an Order dismissing the Amended Petition without prejudice and denying

9

Petitioner’s motions without prejudice. Doc. No. 7. The Court again reminded Petitioner

10

that to re-open and proceed with this habeas case, he must, on or before August 12, 2024,

11

submit both: (1) a completed Amended Petition form that cured the identified pleading

12

deficiencies and (2) either the $5.00 fee or adequate proof of Petitioner’s inability to pay

13

the fee. Id. at 5.

14

On July 24, 2024, instead of filing an Amended Petition and attempting to satisfy

15

the filing fee requirement in this case, Petitioner filed a Notice of Appeal, indicating he

16

was appealing the Court’s original June 11, 2024, Order dismissing the case without

17

prejudice. Doc. No. 8. On July 29, 2024, the Ninth Circuit issued a docketing notice

18

which was copied to the Court, indicating that no briefing schedule would be set in that

19

case until the Ninth Circuit and/or this Court determined whether a certificate of

20

appealability should issue. Doc. No. 9. On September 3, 2024, the Ninth Circuit

21

remanded the case to this Court “for the limited purpose of granting or denying a

22

certificate of appealability at the court’s earliest convenience.” Doc. No. 10. In that

23

same Order, the Ninth Circuit instructed: “If the district court chooses to issue a

24

certificate of appealability, the court should specify the issues that meet the required

25

showing; if the district court declines to issue a certificate, the court is requested to state

26

its reasons. Id. On September 6, 2024, the Court issued an order declining to issue a

27

certificate of appealability. Doc. No. 12. The order noted the Court had not issued a

28

final order or judgment in this case and found that with respect to the June 11, 2024,
2
24cv0981 MMA (JLB)

1

Order, “reasonable jurists would not find it debatable whether the Court correctly

2

concluded the case warranted dismissal without prejudice based on Petitioner’s failure to

3

satisfy the filing fee requirement, failure to use the proper form, and failure to allege

4

exhaustion of state judicial remedies.” Id. at 4. To the extent Petitioner also sought to

5

appeal the Court’s subsequent July 18, 2024, order dismissing the Amended Petition

6

without prejudice for those same deficiencies, the Court also concluded “a certificate of

7

appealability is not warranted because reasonable jurists would not find it debatable that

8

the Court was correct in its ruling.” Id.

9

II. JURISDICTION

10

In view of the pending appeal, the Court must first determine whether it has

11

jurisdiction to consider the SAP.1 Generally, “[t]he filing of a notice of appeal is an

12

event of jurisdictional significance—it confers jurisdiction on the court of appeals and

13

divests the district court of its control over those aspects of the case involved in the

14

appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); see 28

15

U.S.C. § 1291 (“The courts of appeals (other than the United States Court of Appeals for

16

the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the

17

district courts of the United States, . . .”). “However, when the appeal is from an

18

unappealable order, the district court may disregard the purported notice of appeal and

19

proceed with the case.” Murillo v. Flournoy, 2013 WL 1147628, at *1 (S.D. Cal. 2013)

20

(finding the district court retained jurisdiction because Petitioner filed a Notice of Appeal

21

before the district court adopted the Report and Recommendation and issued a final order

22

and judgment) (citing Estate of Connors v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993));

23
24
25
26
27
28

A review of the Ninth Circuit’s docket reflects that this Court’s September 6, 2024, Order
was received and entered on September 10, 2024, and does not reflect any further docket
activity since that entry. See Doc. No. 4 and docket generally in Johnson v. Martinez, et
al., 9th Cir. Case No. 24-4638 (last visited Sept. 25, 2024).
1

3
24cv0981 MMA (JLB)

1

see also Warren v. Las Vegas Metro. Police Dep’t, No. 23-cv-0065-GMN (DJA), 2023

2

WL 6785815, at *1 fn. 1 (D. Nev. Oct. 12, 2023).

3

Here, the Court has not issued a final order or judgment in this case. Because

4

Petitioner is currently appealing a non-final order dismissing his original federal Petition

5

without prejudice, see Doc. No. 8, the Court is satisfied that jurisdiction remains with this

6

Court despite Petitioner’s premature appeal.

7
8
9

III. THE SECOND AMENDED PETITION
Prior to screening, the Court will address the timeliness of the SAP. Again, in the
June 11, 2024, Order, the Court dismissed this habeas action without prejudice and

10

instructed Petitioner that to proceed with this case, he must both (1) submit a completed

11

Amended Petition form that cured the identified pleading deficiencies of failure to satisfy

12

the filing fee requirement, failure to use the proper form and failure to allege exhaustion

13

of state judicial remedies and (2) either submit the filing fee or adequate proof of his

14

inability to pay the fee, on or before August 12, 2024. See Doc. No. 2 at 3. After

15

Petitioner submitted an Amended Petition on July 16, 2024, the Court in the July 18,

16

2024, Order, dismissed that Petition without prejudice for the same three identified

17

deficiencies and again instructed Petitioner that to re-open and proceed with his case he

18

must both submit an Amended Petition that cured the identified deficiencies along with

19

either the filing fee or adequate proof of his inability to pay the fee, again on or before

20

August 12, 2024. See Doc. No. 7 at 5.

21

The SAP was received by the Court and is file-stamped September 5, 2024, see

22

Doc. No. 11 at 1, but Petitioner dated it as having been signed on June 10, 2024. See id.

23

at 12. Despite the September 5, 2024, file-stamped date, the constructive filing date of

24

the SAP would ordinarily be the date Petitioner handed it to correctional officers for

25

mailing to the Court. See Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002) (discussing

26

the “mailbox rule” under which “a legal document is deemed filed on the date a petitioner

27

delivers it to the prison authorities for filing by mail.”), citing Houston v. Lack, 487 U.S.

28

266, 270-71 (1988) and Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999); see also
4
24cv0981 MMA (JLB)

1

Houston, 487 U.S. at 276 (“[T]he notice of appeal was filed at the time petitioner

2

delivered it to the prison authorities for forwarding to the court clerk.”) However, in this

3

case, the SAP is unaccompanied by either a proof of service or an envelope showing the

4

date it was mailed. See generally Doc. No. 11. This discrepancy between the date the

5

SAP was signed and when it was received is also notable given the stated June 10, 2024,

6

signing date is well before Petitioner submitted the prior Amended Petition to the Court.

7

Compare Doc. No. 11 at 12 with Doc. No. 6. The docket reflects the prior Amended

8

Petition was signed by Petitioner on July 8, 2024, mailed on July 12, 2024, and file-

9

stamped July 16, 2024. See Doc. No. 6 at 1-3.

10

However, in an abundance of caution and despite these noted discrepancies, the

11

Court will construe the SAP as timely filed despite the apparently late submission and

12

will proceed to screen it in the ordinary course. Upon review, the SAP suffers from

13

several deficiencies, some but not all repeated from prior petitions, and thus again

14

warrants dismissal.

15

A.

16

Failure to Satisfy Filing Fee Requirement
Petitioner still has not paid the $5.00 filing fee and has not filed an application to

17

proceed in forma pauperis. Because this Court cannot proceed until Petitioner has either

18

paid the filing fee or has qualified to proceed in forma pauperis, the SAP is subject to

19

dismissal without prejudice. See R. 3(a), Rules Governing Section 2254 Cases (2019).

20

B.

21

Petition Appears to Challenge More Than One Judgment
In the SAP, Petitioner for the first time indicates he is challenging a Los Angeles

22

County Superior Court judgment of conviction in case number BA438628, which he

23

states was dated “before 12/15/15.” See Doc. No. 11 at 1. However, in the sole ground

24

for habeas relief in the SAP, Petitioner indicates his challenge arises from a May 29,

25

2024, arrest and detention which occurred in San Diego County, see id. at 6, as he

26

similarly indicated in both prior Petitions. See Doc. No. 1 at 1, Doc. No. 6 at 1-2. The

27

Court previously observed that Petitioner was, at the time the initial Petition was filed,

28

incarcerated at the San Diego County Jail, and serving a sentence for a parole violation.
5
24cv0981 MMA (JLB)

1

See Doc. No. 2 at 1. Petitioner does not indicate, much less explain, if or how his Los

2

Angeles County judgment of conviction bears any connection to his San Diego arrest and

3

detention. It instead appears from the face of the SAP that Petitioner is attempting to

4

challenge two judgments of conviction issued by two separate state courts.

5

Rule 2(e) of the Rules Governing Section 2254 Cases provides that: “A petitioner

6

who seeks relief from judgments of more than one state court must file a separate petition

7

covering the judgment or judgments of each court.” R. 2(e), Rules Governing Section

8

2254 Cases (2019). The Advisory Committee Note to Rule 2(e) states that “a single

9

petition may assert a claim only against the judgment or judgments of a single state court

10

(i.e., a court of the same county or judicial district or circuit).”2 R. 2(e) Rules Governing

11

Section 2254 Cases (2019), 28 U.S.C. foll. § 2254 advisory committee’s note.

12

Accordingly, the SAP also appears subject to dismissal because it attempts to challenge

13

more than one judgment.

14

C.

Failure to Allege Exhaustion of State Judicial Remedies

15

Additionally, Petitioner has still not alleged exhaustion of state remedies. Habeas

16

petitioners who wish to challenge either their state court conviction or the length of their

17

confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C.

18

§ 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state

19

judicial remedies, a California state prisoner must present the California Supreme Court

20

with a fair opportunity to rule on the merits of every issue raised in his or her federal

21

habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Ordinarily, to

22

satisfy the exhaustion requirement, a petitioner “‘must fairly present[]’ his federal claim

23

to the highest state court with jurisdiction to consider it, or . . . demonstrate[] that no state

24

remedy remains available. Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations

25

omitted). Moreover, to properly exhaust state court remedies a petitioner must allege, in

26
27
28

This Advisory Committee Note references the Rule as then codified as Rule 2(d), which
has since been recodified as Rule 2(e).

2

6
24cv0981 MMA (JLB)

1

state court, how one or more of his or her federal rights have been violated. For example,

2

“[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial

3

denied him [or her] the due process of law guaranteed by the Fourteenth Amendment, he

4

[or she] must say so, not only in federal court, but in state court.” Duncan v. Henry, 513

5

U.S. 364, 365-66 (1995).

6

Petitioner again fails to allege that he raised the claim or claims he wishes to bring

7

here in California Supreme Court. The SAP presents one ground for relief, as the space

8

provided on the habeas form for ground two appears scratched out with additional

9

argument added on that page entitled “Memorandum.” Doc. No. 11 at 6-7. In response

10

to the question on the habeas form asking if Petitioner raised ground one in the California

11

Supreme Court, Petitioner has not checked either “yes” or “no” and has instead only

12

indicated: “Unsure.” Id. at 6. Petitioner also indicates either “Unsure” or “No” in

13

response to earlier questions on the habeas form asking if he filed any motions,

14

applications or petitions other than a direct appeal as to the challenged judgment in the

15

California Supreme Court and indicates he did not appeal from the judgment of

16

conviction in the California Court of Appeal. See id. at 3-4. If Petitioner has raised his

17

federal claim or claims in the California Supreme Court, he must so specify.

18

Rule 4 of the Rules Governing Section 2254 Cases provides for summary dismissal

19

of a habeas petition “[i]f it plainly appears from the face of the petition and any attached

20

exhibits that the petitioner is not entitled to relief in the district court . . .” R. 4, Rules

21

Governing Section 2254 Cases (2019). Here, it appears plain from the SAP that Petitioner

22

is not presently entitled to federal habeas relief because he has not alleged exhaustion of

23

state court remedies.

24
25
26
27
28
7
24cv0981 MMA (JLB)

1

IV. CONCLUSION AND ORDER 3

2

For the foregoing reasons, the Court concludes it has jurisdiction over Petitioner’s

3

Second Amended Petition and DISMISSES the Second Amended Petition [Doc. No. 11]

4

without prejudice. This habeas case remains dismissed without prejudice. If Petitioner

5

wishes to re-open and proceed with this case, he must submit, no later than November

6

25, 2024, both (1) a completed Amended Petition form that cures the identified pleading

7

deficiencies AND (2) either the $5.00 fee or adequate proof of Petitioner’s inability to

8

pay the fee.

9
10

IT IS SO ORDERED.
Dated: September 26, 2024

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The Court would again decline to find a certificate of appealability is warranted for
reasons similar to those previously stated in the September 6, 2024, Order, see Doc. No.
12, namely because the Court has not yet issued any final order or judgment in this case
and because reasonable jurists would not find it debatable that the Court is correct in its
ruling that the SAP is subject to dismissal without prejudice for the reasons stated above.
See 28 U.S.C. § 2253(c)(1)(A) and (c)(2); see also Slack v. McDaniel, 529 U.S. 473, 484
(2000).
3

8
24cv0981 MMA (JLB)