Johnson v. Martinez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DERRICK L. JOHNSON, Case No.: 24-cv-0981-MMA (JLB)

12 Petitioner, ORDER DISMISSING SECOND 13 v. AMENDED PETITION WITHOUT PREJUDICE 14 KELLY MARTINEZ, et al.,

15 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 I. RELEVANT PROCEDURAL HISTORY 23 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 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, 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 1 A review of the Ninth Circuit’s docket reflects that this Court’s September 6, 2024, Order 27 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 28 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 III. THE SECOND AMENDED PETITION 8 Prior to screening, the Court will address the timeliness of the SAP. Again, in the 9 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 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. Failure to Satisfy Filing Fee Requirement 16 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. Petition Appears to Challenge More Than One Judgment 21 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. 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 2 This Advisory Committee Note references the Rule as then codified as Rule 2(d), which 28 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 1 IV. CONCLUSION AND ORDER? 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 IT IS SO ORDERED. 10 |! Dated: September 26, 2024 Lik la club 12 HON’ MICHAEL M. ANELLO 13 United States District Judge 14 15 16 17 18 19 20 21 22 || 24 The Court would again decline to find a certificate of appealability is warranted for 25 ||reasons similar to those previously stated in the September 6, 2024, Order, see Doc. No. 26 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 27 || ruling that the SAP is subject to dismissal without prejudice for the reasons stated above. 28 See 28 U.S.C. § 2253(c)(1)(A) and (c)(2); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). °