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Johnson v. Hedgpeth

July 18, 2009

WAYNE JOHNSON, JR. PETITIONER,
v.
A. HEDGPETH, WARDEN, RESPONDENT.



The opinion of the court was delivered by: George H. WU United States District Judge

MEMORANDUM AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

On April 28, 2009, Anthony Wayne Johnson, Jr., ("petitioner"), proceeding pro se, filed this federal petition for writ of habeas corpus challenging a 2005 California conviction for misdemeanor battery and its resulting, and now expired, 14-day sentence. Petitioner is currently serving a 15-year, 8-month sentence in California as a result of subsequent firearm-related convictions. Because petitioner is not "in custody" pursuant to the conviction he seeks to challenge here, this matter is DISMISSED WITH PREJUDICE.*fn1

SUMMARY OF STATE COURT PROCEEDINGS

According to the petition and the exhibits attached to it, on April 26, 2005, petitioner pled guilty in San Bernardino County Superior Court case no. MWV096528 to misdemeanor battery ("the misdemeanor conviction"). He was sentenced to 14 days in custody as a result.

On November 22, 2006, a San Bernardino county jury convicted petitioner in case no. FWV038022 ("the felony conviction") of two counts of unlawful firearm activity, two counts of shooting at an occupied motor vehicle, and assault with a firearm. He was sentenced to 15 years, 8 months in state prison.

On December 20, 2006, petitioner filed a direct appeal of the felony conviction, which was denied on November 8, 2007. He petitioned the California Supreme Court for review, which was denied on January 24, 2008.

He then filed a series of habeas petitions in the San Bernardino County Superior Court, the California Court of Appeal, and the California Supreme Court. Most recently, according to the California Courts online case information system,*fn2 on March 2, 2009, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, case no. S170923, which is pending.

This federal petition followed.

PETITIONER'S CONTENTIONS

Petitioner raises two grounds in his federal petition. The first challenges the adequacy of his trial counsel in his misdemeanor case. The second proclaims that he is innocent of the misdemeanor conviction and contends that the purported victim, his former girlfriend, lied to the police and the court and later recanted her accusations.

The gravamen of the petition, however, is that his current felony sentence is unconstitutional because the trial court relied on the allegedly improper misdemeanor conviction as a basis for enhancement.

DISCUSSION

A. Duty to Screen

This court has a duty to screen applications for habeas corpus relief. See Rules Governing § 2254 Cases in the United States District Courts, Rule 4 Advisory Committee Notes; see also Calderon v. United States Dist. Court for the N. Dist. of Cal. (Nicolaus), 98 F.3d 1102, 1109 (9th Cir. 1996) (concurring opinion). If it plainly appears from the face of the petition and any annexed exhibits that the petitioner is not then entitled to relief in the district court, the judge shall make an order for summary dismissal of the petition. Rules Governing ยง 2254 Cases in the United States District Courts, Rule 4; see also Local Civil Rule 72-3.2 (authorizing magistrate judge to prepare proposed ...


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