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David Lamar Johnson v. John Marshall*Fn1

December 9, 2010

DAVID LAMAR JOHNSON, PETITIONER,
v.
JOHN MARSHALL*FN1 , WARDEN,
RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case is before the undersigned pursuant to the parties' consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(1)-(2).

On March 17, 2010, respondent filed a motion to dismiss the petition, contending that the claims raised therein had not been properly exhausted. Dckt. No. 12. Petitioner then moved this court to stay his petition and hold it in abeyance to allow him to return to state court to exhaust his claims. Dckt. No. 16. Respondent opposes petitioner's request for a stay.

I. Exhaustion

A district court may not grant a petition for a writ of habeas corpus unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). A state will not be deemed to have waived the exhaustion requirement unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).

Exhaustion of state remedies requires that petitioners fairly present federal claims to the highest state court, either on direct appeal or through state collateral proceedings, in order to give the highest state court "the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations omitted). "[A] state prisoner has not 'fairly presented' (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by,247 F.3d 904 (9th Cir. 2000). "[T]he petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident . . . ." Id. (citations omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) ("a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief"); Duncan, 513 U.S. at 365-66 (to exhaust a claim, a state court "must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution").

Petitioner filed one habeas petition in the California Supreme Court. Resp.'s Mot. to Dism., Lodged Docs. In Supp. Thereof (hereinafter "Lodged Doc."), Lodged Doc. 2. Petitioner argued that the trial court abused its discretion in sentencing him under California's Three Strikes Law and that the Three Strikes sentencing violated state and federal prohibitions on cruel and unusual punishment and double jeopardy. Id. The court denied the petition with citation to In re Swain, 34 Cal.2d 300, 304 (1949) and People v. Duvall, 9 Cal.4th 464, 474 (1995). Lodged Doc. 3.

In the instant petition, petitioner raises the following claims:

(1) that the prosecution failed to disclose evidence favorable to the defense;

(2) that his sentencing violated the federal constitutional prohibitions on cruel and unusual punishment and double jeopardy; and

(3) that he was denied effective assistance of counsel at trial, because

(a) the trial court denied his request to fire his attorney,

(b) his trial attorney failed to suppress perjured witness testimony, and

(c) he accepted a plea deal because he feared he would receive a worse outcome through trial due to his counsel's incompetence.

Pet. at 5-6. There is no question that petitioner has not exhausted claims (1) and (3), which were not included in his California Supreme Court petition. Respondent contends that claim (2) is also unexhausted, because petitioner failed to fairly present the claim to the California ...


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