(HC) Johnson v. Cueva ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRYON C. JOHNSON, No. 2:20-cv-02060 JAM GGH P 12 Petitioner, 13 v. ORDER 14 DANIEL E. CUEVA, Acting Warden, 15 Respondent. 16 17 18 Introduction and Summary 19 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. §2254. The matter was referred to the United States Magistrate Judge 21 pursuant to 28 U.S.C. §636(b)(1) and Local Rule 302(c). 22 Petitioner believes a federal hold or warrant is keeping him from being released from state 23 prison on an allegedly expired state sentence, even though he also recognizes that he is serving an 24 indeterminate life sentence on other state convictions. Nevertheless, petitioner wants state 25 authorities to lift the supposed federal hold. The United States Attorney, at the request of the 26 undersigned, reported that petitioner has no remaining federal sentence to complete in any way 27 whatsoever. ECF No. 23. 28 //// 1 The state respondent has moved to dismiss on the basis that petitioner has not exhausted 2 his claims with the California Supreme Court. ECF No. 16. The undersigned also notes, to the 3 extent that petitioner still believes he is subject to a federally imposed sentence and a federally 4 imposed “hold,” the proper petition should be brought pursuant to 28 U.S.C. § 2241. 5 The Habeas Petition 6 Petitioner alleges that he received a four year “consecutive” to state incarceration federal 7 sentence in 1994. He believes that a state imposed sentence, to which the federal sentence is 8 supposedly consecutive expired in 2016. ECF No. 1 at 4 (Ground 1). He asserts, at least initially, 9 that he is being erroneously kept in state prison because of this federal conviction, i.e., state 10 authorities refuse to lift the federal warrant/hold, but somehow he is being kept in state prison 11 regardless of the fact that his state (and federal) sentence has expired. Later, however, petitioner 12 alleges that he is serving an 8 year-to-life indeterminate state sentence for crimes unrelated to the 13 “expired” state sentence. ECF No. 1 at 6. Nevertheless, he wants the federal conviction expunged 14 from state records so that he can be released. 15 The Motion to Dismiss 16 State Claim 17 Respondent moves to dismiss on the basis that petitioner has not exhausted any of his 18 claims with the California Supreme Court. Petitioner opposes this motion, not on the grounds 19 that he has exhausted such claims, but that the sentence at issue is a federal one such that his 20 expungement claims need not be exhausted. Of course, no authority is cited for petitioner’s 21 argument. 22 Assuming for the moment that state CDCR personnel have the authority to expunge a 23 federal conviction from their records, or otherwise correct an inoperative federal warrant/hold, or 24 is otherwise simply holding petitioner in a state prison for erroneous reasons, respondent is 25 correct: petitioner must have exhausted his claims with the California Supreme Court. 26 “Under the exhaustion requirement, a habeas petitioner challenging a state conviction 27 must first attempt to present his claim in state court.” Harrington v. Richter, 562 U.S. 86, 103 28 (2011); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“the exhaustion doctrine is 1 designed to give the state courts a full and fair opportunity to resolve federal constitutional claims 2 before those claims are presented to the federal courts”). A petitioner satisfies the exhaustion 3 requirement by providing the highest state court with a full and fair opportunity to consider all 4 claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); 5 Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). For a California prisoner to exhaust, he 6 must present his claims to the California Supreme Court on appeal in a petition for review or 7 post-conviction petition for a writ of habeas corpus in which he adequately describes the federal 8 constitutional issue that he asserts was violated. See Gatlin v. Madding, 189 F.3d 882, 888 (9th 9 Cir. 1999). 10 Petitioner does not allege, much less demonstrate, that he has exhausted state remedies. 11 This habeas petition, which names a state respondent, should be dismissed on grounds of lack of 12 exhaustion with leave to amend. 13 Federal Claim 14 Moreover, from petitioner’s opposition, the undersigned understands that petitioner really 15 desires to attack the execution of a federal sentence, if indeed there is any federal sentence to 16 attack. As such, petitioner’s remedy is to file a 28 U.S.C. § 2241 habeas petition. See Dunne v. 17 Henman, 875 F.2d 244, 249 (9th Cir. 1989). 18 The problem is, according to the United States Attorney, that no yet-to-be completed 19 federal sentence exists. Petitioner must amend the petition to state a claim which makes sense in 20 light of the facts. 21 Conclusion 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Respondent’s motion to dismiss (ECF No. 16) will be granted with leave to amend; 24 2. Petitioner shall file an amended petition within 30 days from the date of this order in 25 accordance with the following instructions: The amended petition shall clearly state with specific 26 facts (which are not inconsistent) with what petitioner is attempting to adjudicate with respect to 27 the operation of a state-imposed incarceration. If petitioner is simply attempting to have state 28 records corrected, he shall specifically state the nature of the records he is attempting to correct, 1 and whether he has exhausted administrative and/or state court remedies. If petitioner is 2 attempting to attack the execution of an unexpired, actually existing, federal sentence, he shall 3 clearly show that he has an operative federal sentence to remedy. Petitioner shall show why, for 4 either state or federal purposes, why this case is not moot, i.e., what real life impact on petitioner 5 an asserted error makes; and 6 3. In the alternative to filing an amended petition, petitioner may inform the court within 7 30 days from the date of this order, that in light of the information presented by the United States 8 Attorney, he no longer desires to pursue this action. 9 Dated: July 19, 2021 /s/ Gregory G. Hollows 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28