1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION

11

12 HERBERT JOHNSON, No. 2:25-cv-10511-RGK-BFM 13 Petitioner, v. ORDER TO SHOW CAUSE 14 WHY HABEAS PETITION

LONG BEACH COURT, SHOULD NOT BE DISMISSED

15 Respondent. 16 17 18 SUMMARY OF ORDER 19 Petitioner Herbert Johnson filed a habeas petition in federal court seeking 20 relief under the Racial Justice Act. It does not appear that Johnson has 21 exhausted his claim by presenting it to the state’s highest court before filing this 22 federal Petition. The Court therefore orders Johnson to explain why his Petition 23 should not be dismissed. If Johnson fails to timely respond to this order, 24 the Court will recommend that his Petition be dismissed. 25 26 ORDER 27 Johnson is a California state prisoner currently housed in the Corcoran 28 State Prison. (ECF 1 at 2.) He is serving a sentence of 89 years to life based on 1 his conviction under California Penal Code 261(a)(2). He filed this Petition 2 because he believes he is entitled to relief under California’s Racial Justice Act. 3 (ECF 1 at 3.) 4 Rule 4 of the Rules Governing Section 2254 Cases in the United States 5 District Courts allows a district court to dismiss a petition if it “plainly appears 6 from the petition and any attached exhibits that the petitioner is not entitled to 7 relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 8 Cases. It appears that this Petition is subject to dismissal under Rule 4 because 9 the claim it presents is not exhausted. 10 A state prisoner must exhaust state court remedies before a federal court 11 may consider granting habeas corpus relief. See 28 U.S.C. § 2254(b)(1)(A); 12 O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion 13 requirement, a habeas petitioner must “give the State the opportunity to pass 14 upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. 15 Henry, 513 U.S. 364, 365 (1995) (citation and quotation marks omitted). For a 16 petitioner in California state custody, this generally means that the petitioner 17 must have fairly presented his federal claims to the California Supreme Court. 18 See O’Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); see also Gatlin 19 v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O’Sullivan to 20 California). 21 Here, the Petition does not reflect that Johnson has presented his claim 22 under the Racial Justice Act to any state court, let alone the California Supreme 23 Court. (ECF 1 at 5-6 (outlining the post-conviction appeals and petitions filed 24 by Petitioner).) Indeed, he states that this filing is his claim under the Racial 25 Justice Act, but this Court has no authority to consider his claim in the first 26 instance. As such, it appears his Petition is subject to dismissal for failure to 27 exhaust. 28 1 Before the Court recommends dismissal of the action on these grounds, 2 || the Court will give Johnson an opportunity to respond. Johnson is therefore 3 |} ORDERED to show cause why the Court should not recommend dismissal of 4 || the Petition for failure to exhaust. Johnson shall file his response in writing no 5 || later than January 5, 2026. 6 Petitioner’s failure to file a timely response as ordered may result 7 || in the Court recommending that his case be dismissed for failure to 8 || exhaust, failure to present cognizable claims, and/or for failure to 9 || prosecute and to follow court orders. 10 11 || DATED: December 8, 2025 elu 12 13 BRIANNA FULLER MIRCHEFF 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28