Paul Russell Johnson v. North Kern State Prison
Filing
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ORDER DISMISSING ACTION by Judge David O. Carter. The Court orders that the case be DISMISSED without prejudice for the reasons stated above. (See Order for further details) Case Terminated. Made JS-6. (vm)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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) Case No. CV 11-1263 DOC (MRW)
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Petitioner,
) ORDER DISMISSING ACTION
vs.
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NORTH KERN STATE PRISON, )
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Respondent.
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____________________________ )
PAUL JOHNSON,
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The Court dismisses Petitioner’s defective habeas action for failure to
20 exhaust state court remedies.
Petitioner filed his federal habeas action in August 2011. According to the
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22 Petition and the First Amended Petition, Petitioner pled guilty in state court to drug
23 possession and driving under the influence charges. He received a three-year
24 prison term for his convictions.
Petitioner acknowledged in his Petition that he did not appeal his conviction
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26 or sentence in state court. He also did not seek habeas review in any state court.
27 (Docket # 1 at 5.) Rather, after his July 2011 sentencing, he immediately filed his
28 habeas petition in federal court.
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The Court screened the petition shortly after filing. Magistrate Judge Wilner
2 determined that the petition was defective because Petitioner did not attempt to
3 exhaust his claims in state court. (Docket # 3.) The Court ordered Petitioner to
4 show cause why the action should not be dismissed for failure to exhaust state
5 remedies. The Court instructed Petitioner to file a memorandum explaining why
6 he believed he was entitled to seek federal relief. Alternatively, the Court advised
7 Petitioner that he could voluntarily dismiss his unexhausted petition.
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Instead, Petitioner filed a First Amended Petition using a state court habeas
9 form. The First Amended Petition reiterated that Petitioner had recently been
10 sentenced in state court, and continued to acknowledge that he has not exhausted
11 his appellate review in state court before coming to federal court. However, the
12 First Amended Petition now notes a pending criminal appeal in state court.1
13 (Docket # 5 at 6.)
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***
A prisoner must exhaust all claims as a prerequisite to federal court
16 consideration of a habeas corpus petition. 28 U.S.C. § 2254(b)(1)(A). Petitioner
17 must fairly present those claims to the state’s highest court. Rose v. Lundy,
18 455 U.S. 509 (1982). A claim has not been fairly presented unless the prisoner
19 describes in the state court proceedings both the operative facts and federal legal
20 theory on which his claim is based. Duncan v. Henry, 513 U.S. 364, 370 (1995).
21 Petitioner bears the burden of demonstrating this prerequisite has been met.
22 Williams v. Craven, 460 F.2d 1253, 1254 (9th Cir. 1972).
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The Court confirmed the filing of a notice of appeal in the state court
via the California Appellate Courts website.
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In this case, the Court informed Petitioner that his federal habeas petition
2 consists of entirely unexhausted claims. Petitioner has not met his burden of
3 showing that he exhausted his state court rights before he commenced this federal
4 habeas action as required by statute. Although Petitioner may currently have an
5 appeal pending in state court, that is insufficient to satisfy the exhaustion
6 requirement under federal law. Petitioner’s wholly unexhausted petition is
7 therefore subject to dismissal.
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The Court therefore orders that the case be DISMISSED without prejudice
9 for the reasons stated above.
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IT IS SO ORDERED.
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12 DATED: September 27, 2011
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___________________________________
DAVID O. CARTER
UNITED STATES DISTRICT JUDGE
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16 Presented by:
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___________________________________
19 MICHAEL R. WILNER
20 UNITED STATES MAGISTRATE JUDGE
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