Hall L. Johnson III v. William Sullivan

• Court: District Court, C.D. California
• Decided: June 15, 2021
• Docket: 2:20-cv-01198
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HALL L. JOHNSON III, Case No. CV 20-1198-RGK (PD)

12 Petitioner, ORDER: 13 v. (1) DENYING MOTION FOR 14 WILLIAM SULLIVAN, Warden, STAY; AND (2) ACCEPTING FINDINGS, 15 Respondent. CONCLUSIONS, AND 16 RECOMMENDATION OF UNITED STATES 17 MAGISTRATE JUDGE AND 18 DENYING CERTIFICATE OF APPEALABILITY 19

21 On April 16, 2021, the United States Magistrate Judge issued a Report 22 and Recommendation (“Report”) that the Petition for Writ of Habeas Corpus 23 be denied and this action be dismissed with prejudice. [Dkt. No. 49.] On May 24 3, 2021, Petitioner filed his Objections. [Dkt. No. 50.] On May 27, 2021, he 25 filed a Request for a Stay, and on June 1, 2021, he filed a letter withdrawing 26 his stay request. [Dkt. Nos. 52, 53.] 27 28 1 1. The Request for Stay is Denied 2 Petitioner sought to stay this action pursuant to Rhines v. Weber, 544 3 U.S. 269 (2005), to “present new evidence in state court on a [Fourth 4 Amendment] violation.” [Dkt. No. 52 at 1.] After his filed his request for stay, 5 however, he filed a letter stating that he “[does] not wish to proceed with the 6 stay and abeyance.” [Dkt. No. 53.] Accordingly, the Court DENIES the 7 request for a stay on that basis. 8 The Court also notes that a stay is unwarranted in the case for several 9 reasons. First, Petitioner does not sufficiently identify the claim he seeks to 10 assert in state court, stating only that it involves a Fourth Amendment 11 violation. Second, any Fourth Amendment claim he seeks to raise in state 12 court would likely not be cognizable on federal habeas review. See Stone v. 13 Powell, 428 U.S. 465, 494 (1976) (state prisoner may not invoke Fourth 14 Amendment ground for relief on federal habeas review if prisoner had 15 opportunity for “full and fair” consideration of claim in state court). Third, he has not shown the requisite good cause under Rhines for failing to exhaust the 16 claim, and there is no reason to believe that good cause exists, as Fourth 17 Amendment claims can be raised on direct review. Fourth, a stay under Kelly 18 v. Small, 315 F.3d 1063 (9th Cir. 2003), is unwarranted because any Fourth 19 Amendment claim would likely be barred by the statute of limitations, as 20 Petitioner’s conviction became final in November 2019,1 and since that date he 21 has not filed a state habeas petition asserting a Fourth Amendment claim. 22 Finally, his unidentified Fourth Amendment claim would not relate back to 23

24 1 Direct review in Petitioner’s case proceeded only before the California Court of 25 Appeal, which affirmed his judgment on September 24, 2019. [Dkt. No. 15-5.] Petitioner did not file a petition for review in the California Supreme Court. 26 Accordingly, his conviction became final on November 3, 2019, forty days after the court of appeal affirmed his judgment. See Cal. R. Ct. 8.264(b)(1), 8.500(e)(1); see 27 also Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002). The statute of 28 limitations on any Fourth Amendment claim expired one year later, on November 3, 1 any of the claims that he asserts in his Petition, as none of them involve facts 2 implicating a Fourth Amendment violation. See Fed. R. Civ. P. 15(c); Mayle v. 3 Felix, 545 U.S. 644, 662-64 (2005) (claims added by amendment relate back to 4 date of original petition’s filing only if added claims share common core of 5 operative facts with exhausted claim in the original petition). 6 2. The Petition is Dismissed with Prejudice 7 Petitioner does not object to any part of the Report’s analysis concerning 8 his grounds for relief. Instead, he asserts numerous challenges to the Report’s 9 “Statement of Pertinent Facts” [see R. & R. at 3-5], which summarizes the 10 statement of facts from the California Court of Appeal’s reasoned decision 11 affirming Petitioner’s judgment. [See Dkt. No. 15-2 at 2-9.] Petitioner, 12 however, has not shown through clear and convincing evidence that any of the 13 appellate court’s factual findings are erroneous. See Tilcock v. Budge, 538 14 F.3d 1138, 1141 (9th Cir. 2008) (citations omitted); 28 U.S.C. § 2254(e)(1). 15 Instead, he by and large relies on his own account of the events underlying his conviction to claim that the victim, her father, and the investigating detective 16 provided false testimony. Petitioner’s account is irrelevant because he did not 17 testify at trial. 18 He also cites preliminary hearing testimony from witnesses relaying 19 statements from the victim, who testified at trial. The cited preliminary 20 hearing testimony does not show that the victim’s testimony at trial was false, 21 and Petitioner’s selective quotations from the preliminary hearing testimony 22 omit pertinent testimony that both provides context to the quoted portions 23 and supports the court of appeal’s findings. The same is true with respect to 24 Petitioner’s reliance on selective portions of the victim’s testimony to show 25 that she stayed with him by choice. Petitioner omits the victim’s testimony 26 showing that, in fact, she stayed with Petitioner because she feared what 27 would happen if she tried to get away and that she actively sought ways to 28 1 | escape him. Accordingly, his objections are not well-taken. 2 Based on the foregoing and pursuant to 28 U.S.C. § 636, the Court has 3 || reviewed the Petition, the other records on file records herein, the Magistrate 4 || Judge’s Report, and Petitioner’s Objections to the Report. The Court has 5 || engaged in a de novo review of those portions of the Report to which objections 6 | have been made. The Court accepts the Report and adopts it as its own 7 || findings and conclusions. Accordingly, the Petition is DISMISSED with 8 || prejudice. 9 Further, for the reasons stated in the Report, the Court finds that 10 || Petitioner has not made a substantial showing of the denial of a constitutional 11 || right and, therefore, a certificate of appealability is DENIED. See 28 U.S.C. 12 || § 22538(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 13 || (2003). 14 IT IS SO ORDERED. 15 16 | DATED: June 15, 2021 □□ Ronen

18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28