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Paul Samuel Johnson v. Gary Swarthout

May 9, 2012

PAUL SAMUEL JOHNSON, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS and RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se on his petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition, arguing that petitioner failed to exhaust his claims before the highest state court as required by 28 U.S.C. § 2254(b)(1). Plaintiff opposes the motion. For the reasons outlined below, the undersigned recommends that the respondent's motion to dismiss be granted.

Background

On September 3, 2010, petitioner went to sleep in a bunk not assigned to him and delayed the prison count by 45 minutes. See Doc. No. 1 at 15; Doc. No. 13-1 at 15. Petitioner was issued a Rules Violation Report ("RVR") for "Delaying an Officer in Performance of His Duties" and assessed a 90 day loss of credits. See Doc. No. 1 at 17; Doc. No. 13-1 at 18. Petitioner alleges that, during the hearing convened in connection with the RVR, his due process rights were violated because, among other things, he was not allowed to call witnesses or present evidence, and was not provided with a staff assistant. See Doc. No. 1 at 7-9.

The original RVR is dated September 3, 2010. See Doc. No. 1 at 15; Doc. No. 13-1 at 15. The log number assigned to the September 3, 2010 RVR is A-10-09-004. Id. It appears from the RVR that the original hearing was continued, and a final report was issued on October 21, 2010. See Doc. No. 1 at 17-18; Doc. No. 13-1 at 18-19. Petitioner appealed the RVR to the Warden, and to the Director of the California Department of Corrections and Rehabilitation ("CDCR"), both of which were denied. See Doc. No. 13-1 at 22-25. The Director's Level Decision is dated June 3, 2011. See id. at 24-25.

The record reflects that, on July 25, 2011, petitioner filed a writ of habeas corpus with the Kern County Superior Court, alleging due process violations in connection with the September 3, 2010 RVR. See Doc. No. 13-2 at 1-2. The Superior Court denied the petition on September 26, 2011, finding that "some evidence" supported the action taken by prison officials. Id.

The current federal petition was filed in this court on December 6, 2011. See Doc. No. 1.

In the federal petition, petitioner alleges that he raised his current claims with the Superior Court and the state Supreme Court. See Doc. No. 1 at 8 ("The California Supreme Court didn't even consider to look at it and issued a post card denial!") Petitioner additionally claims in his application that he "appeal[s] everything, to California Supreme Court in all state matters always." See Doc. No. 1 at 3. However, in response to the question of whether he appealed "this judgment," petitioner responds that he appealed his underlying criminal judgment - and provides no detail about what appeals he took from the September 3, 2010 RVR. See Doc. No. 1 at 2, Answer Nos. 10-11.

Petitioner has filed over 200 pages of supplements and exhibits in connection with this habeas petition, none of which are the habeas petition from the Supreme Court or the postcard denial. See Doc. No. 1.

When petitioner filed this current petition, he had at least three other habeas petitions pending in this court. Included among the three is case no. 11-cv-2715 GEB CKD HC, filed October 14, 2011, in which petitioner alleges that his due process rights were violated in connection with an RVR issued to petitioner for "Obstructing a Peace Officer in the Performance of Duty" on August 10, 2010 when petitioner became argumentative about not being allowed through the work change area with his personal shoes, ignored a direct order to leave the work change area, and disrupted the normal flow of processing inmates through work change for approximately five minutes. See Case No. 11-cv-2715 GEB CKD HC, Doc. No. 1. The log number assigned to the August 10, 2010 RVR is A-10-08-003. Id. In case no. 11-cv-2715, petitioner alleges, among other things, that he was denied a witness at the hearing and requests restoration of his forfeited credits.*fn1 Id.

Respondent has now moved to dismiss, alleging that petitioner has failed to exhaust his claims to the highest available state court before bringing this federal challenge. See 28 U.S.C. § 2244(b)(1). Respondent argues that petitioner must establish exhaustion before he may proceed, but that petitioner did not include a record of that habeas petition in his proceeding. (Pet at 8.) Not has Respondent been able to find any record that [petitioner] raised his instant due process claims in the California Supreme Court, or the state court of appeal.

Doc. No. 13 at 2-3.

Petitioner opposes the motion. He claims that he raised these claims in both the Kings County Superior Court and the California Supreme Court, and that he is flummoxed as to why respondent cannot find the Supreme Court's postcard denial. See Doc. 14 at 2, 9. Petitioner claims that, because of cell searches and his current placement in administrative segregation, he does not have copies of the RVR or the Supreme Court's decision. See id. at 9.

Petitioner has also filed a letter to the undersigned, stating that he has written to the Clerk of the California Supreme Court asking for the case number, as well as copies, of his exhausted habeas petition, but that the Clerk continues to send him the wrong pleadings. See Doc. No. 17 at 1. He asks for the ...


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