1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DARRELL EUGENE JOHNSON, Case No. 22-cv-05613-TLT

8 Plaintiff,

ORDER OF DISMISSAL; GRANTING

9 v. LEAVE TO PROCEED IN FORMA

PAUPERIS

10 SUPERIOR COURT OF CALIFORNIA,

Defendant. 11

12 13 Petitioner, a prisoner of the State of California proceeding pro se, filed a petition for a writ 14 of habeas corpus under 28 U.S.C. § 2254 challenging his conviction and sentence. ECF No. 7. 15 His petition is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the 16 Rules Governing Section 2254 Cases in the United States District Courts. Petitioner is granted 17 leave to proceed in forma pauperis. See ECF No. 2. Because petitioner’s state appeal is pending, 18 the petition will be dismissed without prejudice. 19 DISCUSSION 20 A. Standard of Review 21 This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in 22 custody pursuant to the judgment of a State court only on the ground that he is in custody in 23 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). It 24 shall “award the writ or issue an order directing the respondent to show cause why the writ should 25 not be granted, unless it appears from the application that the applicant or person detained is not 26 entitled thereto.” Id. § 2243. 27 B. Petition 1 of a knife by a San Mateo County jury on July 25, 2022. ECF No. 7 at 1-2. Petitioner reports that 2 his appeal is pending in the state appellate court. Id. at 3, 4. A review of the California Appellate 3 Courts Cases Information System1 also indicates that, as of the date of this order, petitioner’s 4 direct appeal, C No. A166220, is still pending with the opening brief due on May 25, 2023. 5 The Court DISMISSES this federal habeas petition for failure to exhaust state court 6 remedies because it is clear from the face of the petition that petitioner has not yet exhausted state 7 court remedies. Before a petitioner may bring a Section 2254 petition to challenge either the fact 8 or length of his or her confinement, the petitioner must first exhaust state judicial remedies, either 9 on direct appeal or through collateral proceedings, by presenting the highest state court available 10 with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal 11 court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). A district court 12 may not grant the writ unless state court remedies are exhausted, or there is “an absence of 13 available state corrective process,” or such process has been “rendered ineffective.” See 28 U.S.C. 14 § 2254(b)(1)(A)-(B). Petitioner’s direct appeal is still pending. Accordingly, this federal habeas 15 petition is DISMISSED for failure to exhaust state court remedies as required by 28 U.S.C. § 16 2254(b). Petitioner may file a federal habeas petition challenging his 2022 San Mateo County 17 state court criminal conviction after he has exhausted state judicial remedies by presenting his 18 claims to the highest state court available.2 19 C. Certificate of Appealability 20 The federal rules governing habeas cases brought by state prisoners require a district court 21 that issues an order denying a habeas petition to either grant or deny therein a certificate of 22 appealability. See Rules Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of 23 appealability “only if the applicant has made a substantial showing of the denial of a constitutional 24 right,” 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy this standard. 25 1 The California Appellate Courts Cases Information System can be accessed at 26 https://appellatecases.courtinfo.ca.gov/index.cfm. 2 To the extent petitioner attempts to raise claims already adjudicated to the highest state court in a 27 state habeas petition, see ECF No. 1 at 6, dismissal is nonetheless appropriate. See Henderson v. 1 Id. § 2253(c)(3). “Where a district court has rejected the constitutional claims on the merits, the 2 showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that 3 || reasonable jurists would find the district court’s assessment of the constitutional claims debatable 4 or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made such a 5 showing, and, accordingly, a certificate of appealability will be denied. 6 CONCLUSION 7 For the foregoing reasons, the Court GRANTS petitioner leave to proceed in forma 8 || pauperis; DISMISSES this petition for a writ of habeas corpus for failure to exhaust state court 9 || remedies as required by 28 U.S.C. § 2254(b) and DENIES a certificate of appealability. 10 IT IS SO ORDERED. 11 Dated: May 24, 2023 12

TRINA L* PSON

14 United States District Judge 15

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