(HC)Derrick L. Johnson v. Barnes ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DERRICK JOHNSON, Case No. 1:21-cv-00177-SAB-HC 12 Petitioner, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF 13 v. PETITION FOR WRIT OF HABEAS CORPUS 14 STEVEN D. BARNES, (ECF Nos. 1, 6) 15 Respondent. ORDER DIRECTING CLERK OF COURT 16 TO RANDOMLY ASSIGN DISTRICT JUDGE 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. 20 I. 21 BACKGROUND 22 On January 29, 2021, Petitioner commenced the instant proceeding by filing a petition for 23 writ of habeas corpus in the Sacramento Division of the United States District Court for the 24 Eastern District of California. (ECF No. 1). On February 3, 2021, the petition was transferred to 25 this Court. (ECF No. 3). On February 4, 2021, the Court received another petition that is almost 26 identical to the initial petition. (ECF No. 6). 27 Here, Petitioner challenges his conviction in King County Superior Court case number 18CM-0401 on the following grounds: (1) Petitioner’s conviction was incident to an illegal 1 arrest; (2) Petitioner was held to answer for a crime without presentment or indictment of a grand 2 jury, in violation of the Fifth Amendment; and (3) as Petitioner has not been duly convicted, he 3 is in custody in violation of the Thirteenth Amendment. (ECF No. 1 at 1–2; ECF No. 6 at 1–2).1 4 II. 5 DISCUSSION 6 By statute, federal courts “shall entertain an application for a writ of habeas corpus in 7 behalf of a person in custody pursuant to the judgment of a State court only on the ground that he 8 is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 9 § 2254(a). “[T]he second use of ‘in custody’ in the statute requires literally that the person 10 applying for the writ is contending that he is ‘in custody’ in violation of the Constitution or other 11 federal laws.” Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010). See Dickerson v. United States, 12 530 U.S. 428, 439 n.3 (2000). 13 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts 14 requires preliminary review of a habeas petition and allows a district court to dismiss a petition 15 before the respondent is ordered to file a response, if it “plainly appears from the petition and any 16 attached exhibits that the petitioner is not entitled to relief in the district court.” See McFarland v. 17 Scott, 512 U.S. 849, 856 (1994). 18 A. Unlawful Arrest 19 Petitioner appears to argue that he is entitled to habeas relief because his conviction 20 stemmed from an illegal arrest. However, it is an “established rule that illegal arrest or detention 21 does not void a subsequent conviction.” Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (citing 22 Frisbie v. Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886)). See Rose v. 23 Mitchell, 443 U.S. 545, 576 (1979) (Stewart, J., concurring) (“It is well settled that deprivations 24 of constitutional rights that occur before trial are no bar to conviction unless there has been an 25 impact upon the trial itself. A conviction after trial . . . represents a break in the chain of events 26 which has preceded it in the criminal process.” (footnote, internal quotation marks, and citations 27 omitted)). Accordingly, Petitioner is not entitled to habeas relief on this ground. 1 B. Right to Presentment or Indictment by Grand Jury 2 Petitioner argues that he was held to answer for a crime without presentment or 3 indictment of a grand jury, in violation of the Fifth Amendment. However, there is “no due 4 process right to a grand jury indictment before criminal prosecution in state court.” Peterson v. 5 California, 604 F.3d 1166, 1170 (9th Cir. 2010) (citing Hurtado v. California, 110 U.S. 516, 6 534–35 (1884)). Accord Gautt v. Lewis, 489 F.3d 993, 1003 n.10 (9th Cir. 2007) (The “Fifth 7 Amendment right to presentment or indictment by a grand jury . . . has not been incorporated 8 into the Fourteenth Amendment so as to apply against the states.”); Stumpf v. Alaska, 78 F. 9 App’x 19, 21 (9th Cir. 2003) (“Because the right to a grand jury has not been applied to the 10 states via the Fourteenth Amendment, Stumpf’s Fifth Amendment challenge to the grand jury 11 proceedings does not raise a question of federal law and is not cognizable on habeas review.” 12 (citation omitted)). Accordingly, Petitioner is not entitled to habeas relief on this ground. 13 C. Thirteenth Amendment 14 Lastly, Petitioner asserts that as he has not been duly convicted, he is in custody in 15 violation of the Thirteenth Amendment. The Thirteenth Amendment provides that “[n]either 16 slavery nor involuntary servitude, except as a punishment for crime whereof the part shall have 17 been duly convicted, shall exist within the United States, or any place subject to their 18 jurisdiction.” U.S. Const. amend. XIII. “Where a person is duly tried, convicted, sentenced, and 19 imprisoned for crime in accordance with law, no issue of peonage or involuntary servitude arises. 20 The Thirteenth Amendment has no application where a person is held to answer for a violation of 21 a penal statute.” Draper v. Rhay, 315 F.2d 193, 197 (9th Cir. 1963) (citations omitted). As set 22 forth above, illegal arrest does not void a subsequent conviction and there is no right to a grand 23 jury indictment before criminal prosecution in state court. Petitioner has not alleged facts which 24 refute that he was duly tried, convicted, sentenced, and imprisoned. Accordingly, Petitioner is 25 not entitled to habeas relief on this ground. 26 /// 27 /// 1 Ii. 2 RECOMMENDATION & ORDER 3 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 4 | habeas corpus be DISMISSED without leave to amend for failure to state a cognizable federal 5 | habeas claim. See Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curiam) (“[A] petition 6 | for habeas corpus should not be dismissed without leave to amend unless it appears that no 7 | tenable claim for relief can be pleaded were such leave granted.”’). 8 Further, the Clerk of Court is DIRECTED to randomly ASSIGN this action to a District 9 | Judge. 10 This Findings and Recommendation is submitted to the United States District Court 11 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 12 | of the Local Rules of Practice for the United States District Court, Eastern District of California. 13 | Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may 14 | file written objections with the Court and serve a copy on all parties. Such a document should be 15 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 16 | District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 17 | § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 18 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 19 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. OF. nf ee 22 | Dated: _March 1, 2021 __ Of 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28