# Robert Darrell Johnson, Sr. v. Warden

> District Court, C.D. California · January 20, 2022

URL: https://www.frixlaw.com/law-library/cases/9978945

## Case

- **Court:** District Court, C.D. California
- **Decided:** January 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9978945

## How later opinions describe it (automated extraction)

- applying 23 O’Sullivan to California

## Opinion text

Case 5:22-cv-00099-AB-KES Document 4 Filed 01/20/22 Page 1 of 8 Page ID #:25

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 ROBERT DARRELL JOHNSON, Case No. 5:22-cv-00099-AB-KES

12 Petitioner,
ORDER TO SHOW CAUSE WHY
13 v.
PETITION SHOULD NOT BE

14 WARDEN, DISMISSED WITHOUT PREJUDICE
AS UNEXHAUSTED
15 Respondent.

16

17 I.

18 BACKGROUND

19 On January 1, 2022, Robert Darrell Johnson (“Petitioner”) constructively1

20 filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to
21 28 U.S.C. § 2254. (Dkt. 1 [“Petition”].) Petitioner appears to be challenging his
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23 1 “Under the mailbox rule, a prisoner’s pro se habeas petition is deemed filed
when he hands it over to prison authorities for mailing to the relevant court.”
24
Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citation omitted); see
25 also Houston v. Lack, 487 U.S. 266, 268 (1988). A court generally deems a habeas
petition filed on the day it is signed, because it assumes the petitioner turned the
26
petition over to prison authorities for mailing that day. See Butler v. Long, 752
27 F.3d 1177, 1178 n.1 (9th Cir. 2014); Roberts v. Marshall, 627 F.3d 768, 770 n.1
(9th Cir. 2010). Petitioner signed the Petition on January 1, 2022. (Id. at 8.)
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Case 5:22-cv-00099-AB-KES Document 4 Filed 01/20/22 Page 2 of 8 Page ID #:26

1 2013 conviction for murder and resulting sentence of 25 years to life without the
2 possibility of parole. (Id. at 2.) Petitioner was found not guilty by reason of
3 insanity and committed to Patton State Hospital for restoration of his sanity. (Id.);
4 People v. Johnson, No. E071648, 2020 Cal. App. Unpub. LEXIS 7591 (Dec. 4,
5 2020).
6 II.
7 LEGAL STANDARD
8 The United States Supreme Court follows a rule of “total exhaustion,”
9 requiring that all claims in a habeas petition be exhausted before a federal court
10 may grant the petition. See Rose v. Lundy, 455 U.S. 509, 522 (1982). If all or
11 some of the claims have not been exhausted, then the petition is subject to
12 dismissal. Id.
13 To be exhausted, a claim must have been presented to the state courts in
14 order to give the State the opportunity to pass upon and correct alleged violations of
15 the petitioner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995) (per
16 curiam). Exhaustion requires that a petitioner’s claims be fairly presented to the
17 highest court in a state court system even if that court’s review is discretionary.
18 O’Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999); James v. Giles, 221 F.3d
19 1074, 1077, n.3 (9th Cir. 2000). For a petitioner in California state custody, this
20 generally means the petitioner must have fairly presented his claims to the
21 California Supreme Court. See O’Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C.
22 § 2254(c)); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying
23 O’Sullivan to California). A petitioner has the burden of demonstrating that he has
24 exhausted available state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158
25 (3d Cir. 1982).
26 Under the Anti-Terrorism and Effective Death Penalty Act of 1996
27 (“AEDPA”), all federal habeas petitions are subject to a one-year statute of
28 limitations, and claims that are not exhausted and presented to the federal court
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Case 5:22-cv-00099-AB-KES Document 4 Filed 01/20/22 Page 3 of 8 Page ID #:27

1 within one year of the judgment becoming “final,” as defined by AEDPA. 28
2 U.S.C. § 2244(d); Gonzalez v. Thaler, 565 U.S. 134, 135 (2012); Jimenez v.
3 Quarterman, 555 U.S. 113, 119 (2009).
4 Under Rhines v. Weber, 544 U.S. 269 (2005), a district court has discretion
5 to stay a petition to allow a petitioner to exhaust his claims in state court without
6 running afoul of AEDPA’s one-year statute of limitations period. Id. at 273-75. A
7 district court may stay a petition if: (1) the petitioner has good cause for his failure
8 to exhaust his claims; (2) the unexhausted claims are potentially meritorious; and
9 (3) there is no indication that the petitioner intentionally engaged in dilatory tactics.
10 Id. at 278.
11 III.
12 PROCEDURAL HISTORY
13 Petitioner stabbed a bus driver 15 times, killing him. He pleaded not guilty
14 and not guilty by reason of insanity. In the guilt phase of his trial, a jury convicted
15 him of first degree, special circumstance murder and found he used a deadly or
16 dangerous weapon during the commission of the murder. In the sanity phase, the
17 jury found he was insane at the time of the murder. The trial court committed
18 Petitioner to Patton State Hospital for restoration of his sanity. Johnson, 2020 Cal.
19 App. Unpub. LEXIS 7591 at *1.
20 Petitioner filed a counseled appeal, arguing that the evidence admitted at trial
21 was insufficient to prove first degree murder under either theory presented to the
22 jury: (1) that the murder was willful, premeditated, and deliberate, or (2) that
23 Petitioner lay in wait before committing the murder. Petitioner therefore argued
24 that his conviction should be reduced to second degree murder and his maximum
25 term of commitment reduced to 15 years to life plus one year for the deadly or
26 dangerous weapon enhancement. The California Court of Appeal issued an opinion
27 affirming the commitment order on November 18, 2020, and an order denying
28 Petitioner’s petition for rehearing on December 4, 2020. Id. at *1-2.
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Case 5:22-cv-00099-AB-KES Document 4 Filed 01/20/22 Page 4 of 8 Page ID #:28

1 On December 18, 2020, Petitioner filed a petition for review in the California
2 Supreme Court, which was denied on February 10, 2021. People v. Johnson, No.
3 S266328, 2021 Cal. LEXIS 943 (Feb. 10, 2021).
4 On January 1, 2022, Petitioner constructively filed the instant Petition in this
5 Court. (Pet. at 8.) The Petition appears to bring at least the following claims:
6  Petitioner’s appellate counsel was ineffective because (a) she “refuse[d] to
7 hire a private investigator to look into [Petitioner’s] constitutional rights
8 and human rights being violated, that has a cause and effect of the crime”2
9 and “to investigate witnesses that testified at trial, that withheld
10 testimony”; (b) “discriminated [against him] by saying it’s [his] mental
11 illness”; (c) argued on appeal that his sentence should be reduced instead
12 of seeking a new trial, as he requested; (d) wrote him letters with
13 “misspelled basic words.” (Id. at 5 ¶ 8(a); id. at 9; id. at 12 [letter
14 purportedly from attorney with typos].)
15  Petitioner “was in isolation 2½ years 23½ hours lock down for know[ing]
16 Deputy Juan Cedeno’s address and beaten by deputies and threaten[ed]
17 not to testify on [his] own behalf due to relationship with deputy’s wife.”
18 (Id. at 5-6 ¶ 8(b); id. at 9.)
19  Petitioner’s attorneys during his criminal trial, Erin Alexander and
20 Andrew Moll, did not inform the criminal court about the abuse by
21 deputies, even though Petitioner told them about the abuse and they saw
22 bruises on his hands. (Id. at 9.) They advised him not to testify at trial,
23 even though if he had testified about the abuse “that could have had a
24 different outcome of the verdict from the jury and [Petitioner] being

25
2 This appears to refer to Petitioner’s contention that he and his father were
26 “victim[s] of C.I.A. project MK-Ultra, … a real government experimentation of
brainwashing….” (Pet. at 11.) In letters attached to the Petition, Petitioner asserts
27
that at the time of the murder, he was “in a drug induce[d] [state] and under the
28 influence of Project MK Ultra.” (Id. at 17.)
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Case 5:22-cv-00099-AB-KES Document 4 Filed 01/20/22 Page 5 of 8 Page ID #:29

1 convicted.” (Id.)
2  State court Judge Michael A. Smith, who presided over Petitioner’s
3 criminal trial and a restraining order hearing, “let deputies threaten and
4 assault” Petitioner. (Id. at 6 ¶ 8(b).)
5  Petitioner “didn’t see any compensation for [his] living conditions at West
6 Valley Detention Center” even though civil rights attorney Sharon
7 Brunner settled a lawsuit on inmates’ behalf. (Id. at 11.)
8  Petitioner’s rights under Brady v. Maryland, 373 U.S. 83 (1963) were
9 violated because San Bernardino District Attorney Michael A. Ramos
10 failed to disclose to Petitioner’s attorney that Petitioner “assaulted [the]
11 victim two years prior … due to [his] human rights being violated” and he
12 “was arrested [and] … held [for] three weeks….” (Id. at 6 ¶ 8(c); see also
13 id. at 14-16 [letters to district attorney’s office discussing alleged prior
14 assault of same bus driver in May 2008].)
15 IV.
16 DISCUSSION
17 In the Petition, Petitioner admits that none of these claims were raised on
18 direct appeal to the California Court of Appeal, in a petition for review to the
19 California Supreme Court, or in a habeas petition to the California Supreme Court.
20 (Id. 5-6 ¶ 8.) The opinion of the California Court of Appeal confirms that these
21 grounds were not raised on direct appeal. The Petition also indicates that Petitioner
22 has not filed any habeas petitions in any state court with respect to the murder
23 conviction and commitment order. (Id. at 3 ¶ 6.) It therefore appears that these
24 claims are unexhausted and that the Petition should be dismissed without prejudice
25 to the Petition being re-filed after the claims are exhausted.
26 Additionally, to the extent Petitioner is seeking to recover monetary damages
27 based on his treatment by deputies at the West Valley Detention Center, this type of
28 relief cannot be sought in a petition for writ of habeas corpus. “Federal law opens
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Case 5:22-cv-00099-AB-KES Document 4 Filed 01/20/22 Page 6 of 8 Page ID #:30

1 two main avenues to relief on complaints related to imprisonment: a petition for
2 habeas corpus … and a [civil rights] complaint under the Civil Rights Act of 1871
3 … 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004).
4 “Challenges to the validity of any confinement or to the particulars affecting its
5 duration are the province of habeas corpus … ; requests for relief turning on
6 circumstances of confinement may be presented in a § 1983 action.” Id. The Ninth
7 Circuit has held that claims falling within the “core” of habeas are those that would
8 “necessarily lead to [the petitioner’s] immediate or earlier release from
9 confinement”; all other claims must be brought in a civil rights action under 42
10 U.S.C. § 1983. Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en banc),
11 cert. denied, 137 S. Ct. 645 (2017). Thus, if Petitioner believes that his federal
12 constitutional rights were violated while he was a pre-trial detainee and wishes to
13 seek monetary compensation for those violations, he would need to file a civil
14 rights complaint seeking such compensation.3
15 Although in some circumstances a district court may convert an improperly
16 habeas petition into a civil rights complaint, Petitioner’s habeas petition is not
17 amenable to conversion on its face, in part because other claims seek to challenge
18 his murder conviction. Moreover, filing a civil rights complaint differs from filing
19 a habeas petition in the following ways:
20  The filing fee in a habeas action is $5, but the filing fee in a civil rights
21 action is $350. Even if granted leave to proceed without pre-paying the
22 filing fee in a civil rights action, a prisoner plaintiff is required to pay the
23 full amount of the $350 filing fee by way of deductions from his prison
24 trust account. See 28 U.S.C. § 1915(b)(1).
25  If, while incarcerated, a prisoner files 3 civil rights complaints that are
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3 If Petitioner believes that he is a class member in a class action lawsuit
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brought by attorney Sharon Brunner, he can write to her law office at: 14393 Park
28 Avenue, Suite 101, Victorville, CA 92392-3302.
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1 dismissed as “frivolous, malicious, or [for] fail[ure] to state a claim upon
2 which relief may be granted,” the prisoner may not file future actions
3 without the prepayment of filing fees “unless the prisoner is under
4 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
5  There are different pre-filing exhaustion requirements for habeas petitions
6 and civil rights complaints. Before filing a habeas petition, the petitioner
7 generally must exhaust his remedies in state court by filing habeas
8 petitions. Before filing a civil rights complaint, a prisoner plaintiff
9 generally must exhaust his administrative remedies by, for example, filing
10 prison grievances. See Nettles, 830 F.3d at 932 n.8.
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Case 5:22-cv-00099-AB-KES Document4 Filed 01/20/22 Page 8of8 Page ID #:32

1 V.
2 CONCLUSION
3 IT IS HEREBY ORDERED that, on or before February 21, 2022, Petitioner
4 | is ordered to show cause why the Petition should not be dismissed without
5 | prejudice as unexhausted. In response to this Order to Show Cause, Petitioner
6 | should do one of the following:
7 (1) Explain when and how Petitioner believes any or all of the claims in the
8 | Petition were exhausted in the state courts.
9 (2) File a notice voluntarily dismissing the Petition, which would not bar
10 | Petitioner from re-filing the Petition after the claims are exhausted in the state
11 | courts.
12 (3) File a motion to stay this action. A stay would freeze AEDPA’s one-year
13 | statute of limitations and permit Petitioner to return to state court to exhaust his
14 | claims without concern that the statute might expire. As discussed above under
15 | Section II, a stay may be available under Rhines v. Weber, 544 U.S. 269 (2005) if
16 | Petitioner can meet the three-part test described above in Section II.‘
i Te soft)
18 | DATED: January 20, 2022 in &. S
19 KAREN E. SCOTT
UNITED STATES MAGISTRATE JUDGE
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24 * Petitioner may file habeas petitions in the state courts, in order to exhaust
5 his claims, while this Petition is pending in federal court. The one-year federal
statute of limitations for filing a federal habeas petition under 28 U.S.C. § 2254
26 | may be tolled while Petitioner seeks to exhaust his claims, as long as the period has
47 | not yet expired when Petitioner files his first state court petition. See 28 U.S.C.
§ 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-21 (2002); Ferguson v.
28 | Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9978945. Public record. Not legal advice.