Case4:09-cv-00409-CW Document20 Filed09/20/10 Page1 of 6

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10 IN THE UNITED STATES DISTRICT COURT
For the Northern District of California

11 FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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13 DARRELL JOHNSON, No. C 09-0409 CW
14 Petitioner, ORDER GRANTING
RESPONDENT'S
15 v. MOTION TO DISMISS
(Docket No. 14)
16 MICHAEL MARTELL, Acting Warden,
17 Respondent.
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On January 29, 2009, Petitioner Darrell Johnson, a state
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prisoner incarcerated at Mule Creek State Prison, filed this pro se
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petition for a writ of habeas corpus pursuant to Title 28 U.S.C.
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§ 2254. Respondent moves to dismiss the petition based on failure
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to exhaust any of the claims. Petitioner filed an opposition,
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consisting of a hand-written letter with several attachments.
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Respondent has not filed a reply. Having considered all the papers
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filed by the parties, the Court GRANTS Respondent's motion to
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dismiss.
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1 BACKGROUND
2 On October 25, 2006, Petitioner was sentenced to seventeen
3 years in state prison for forcible rape. (Pet. at 2.) In his
4 direct appeal to the California court of appeal, Petitioner argued
5 that the trial court: 1) violated his federal due process rights by
6 admitting K. Doe's testimony about Petitioner's prior sexual
7 assault and by permitting the use of a victim support person during
8 the victim's testimony; and 2) violated California law by admitting
9 the victim's 911 call to the police as a spontaneous statement and
10 by admitting expert testimony on rape trauma syndrome. (Resp.'s
For the Northern District of California

11 Ex. A, Ct. of Appeal decision.)

United States District Court

12 The court of appeal affirmed the conviction, and Petitioner

13 sought review in the California Supreme Court, where he claimed
14 that the trial court: 1) violated his federal due process rights by
15 admitting K. Doe's testimony about a prior sexual assault committed
16 by Petitioner; and 2) violated California law by admitting expert
17 testimony on rape trauma syndrome. (Resp.'s Ex. A, Petition for
18 Review.) The California Supreme Court denied review on January 14,
19 2009. (Pet. at 5.)
20 LEGAL STANDARD
21 Prisoners in state custody who wish to challenge collaterally
22 in federal habeas proceedings either the fact or length of their
23 confinement are first required to exhaust state judicial remedies,
24 either on direct appeal or through collateral proceedings, by
25 presenting the highest state court available with a fair
26 opportunity to rule on the merits of each and every claim they seek
27 to raise in federal court. 28 U.S.C. § 2254 (b), (c). Granberry
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1 v. Greer, 481 U.S. 129, 133-34 (1987); Rose v. Lundy, 455 U.S. 509,
2 515 (1982).
3 The exhaustion-of-state-remedies doctrine reflects a policy of
4 federal-state comity "to give the state the initial 'opportunity to
5 pass upon and correct' alleged violations of its prisoners' federal
6 rights." Picard v. Connor, 404 U.S. 270, 275 (1971)(citations
7 omitted). The exhaustion requirement is satisfied only if the
8 federal claim has been "fairly presented" to the state courts.
9 Id.; Peterson v. Lampert, 319 F.3d 1153, 1155 (9th Cir. 2003)(en
10 banc). A federal district court must dismiss a federal petition
For the Northern District of California

11 containing any claim as to which state remedies have not been

United States District Court

12 exhausted. Rhines v. Webber, 544 U.S. 269, 273-74 (2005).

13 For purposes of exhaustion, pro se petitions may, and
14 sometimes should, be read differently from counseled petitions.
15 Sandgathe v. Maass, 314 F.3d 371, 378 (9th Cir. 2002) (neither
16 confused arguments nor poor lawyering will necessarily defeat a pro
17 se petitioner’s otherwise adequate efforts to assert a federal
18 claim in state court); Peterson v. Lampert, 319 F.3d 1153, 1159
19 (9th Cir. 2003) (en banc) (“[T]he complete exhaustion rule is not
20 to trap the unwary pro se prisoner.”).
21 DISCUSSION
22 I. Exhaustion
23 Respondent moves to dismiss the petition on the ground that
24 all the claims raised are unexhausted. The petition contains the
25 following claims: 1) ineffective assistance of counsel in violation
26 of the Sixth Amendment for failing to object to juror misconduct
27 involving the use of a laptop computer; 2) prosecutorial misconduct
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 Case4:09-cv-00409-CW Document20 Filed09/20/10 Page4 of 6

1 in violation of the Fourteenth Amendment, based on the presentation

2 of false testimony and the use of a photograph taken five hours
3 after the police first arrived on the scene; 3) improper admission
4 of hearsay in violation of California Evidence Code section 1240 by
5 the admission of the victim's 911 call to police; and 4) improper
6 admission of perjured testimony of K. Doe in violation of the
7 Fourteenth Amendment.
8 As mentioned previously, Petitioner only raised two claims
9 before the California Supreme Court: 1) that the trial court erred
10 in admitting testimony about a prior sexual assault; and 2) that
For the Northern District of California

11 the trial court erred in admitting prejudicial rape trauma syndrome

United States District Court

12 evidence. Neither of these claims are in the federal habeas

13 petition. Thus, only unexhausted claims are raised in the federal
14 habeas petition.
15 Accordingly, the Court GRANTS Respondent's motion to dismiss.
16 II. Certificate of Appealability
17 The federal rules governing habeas cases brought by state
18 prisoners have recently been amended to require a district court
19 that dismisses or denies a habeas petition to grant or deny a
20 certificate of appealability in its ruling. See Rule 11(a), Rules
21 Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (effective December
22 1, 2009).
23 For the reasons stated above, Petitioner has not shown "that
24 jurists of reason would find it debatable whether the district
25 court was correct in its procedural ruling." Slack v. McDaniel,
26 529 U.S. 473, 484 (2000). Accordingly, a certificate of
27 appealability is DENIED.
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1 CONCLUSION
2 The instant action must be dismissed because none of
3 Petitioner's claims in his federal habeas petition have been
4 exhausted in state court. The Court GRANTS Respondent's motion to
5 dismiss (Docket No. 14) and DENIES a certificate of appealability.
6 IT IS SO ORDERED
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9 Dated September 20, 2010
10 CLAUDIA WILKEN
United States District Judge
For the Northern District of California

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United States District Court

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 Case4:09-cv-00409-CW Document20 Filed09/20/10 Page6 of 6

1 UNITED STATES DISTRICT COURT

2 FOR THE
3 NORTHERN DISTRICT OF CALIFORNIA
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6 DARRELL JOHNSON, Case Number: CV09-00409 CW
7 Plaintiff, CERTIFICATE OF SERVICE
8 v.
9 MICHAEL MARTEL, Acting Warden, et al,
10 Defendants.
/
For the Northern District of California

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United States District Court

12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court,
Northern District of California.
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That on September 20, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said
14 copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
15 in the Clerk's office.
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Darrell Johnson F49735
18 C-14-217- Up
Mule Creek State Prison
19 P.O. Box 409060
Ione, CA 95640
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Dated: September 20, 2010
21 Richard W. Wieking, Clerk
By: Ronnie Hersler, Adm. Law Clerk
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