Johnson v. Martinez et al

26-cv-715
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DERRICK L. JOHNSON,
Petitioner,
v.
KELLY MARTINEZ, Sheriff of San
Diego County, Official Capacity; SAN
DIEGO SUPERIOR COURT;
Respondents.
Case No.: 3:26-cv-0715-BTM-AHG
ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING CASE WITHOUT
PREJUDICE
[ECF NO. 1, 2]
On January 27, 2026, Petitioner Derrick Johnson, currently incarcerated at the San
Diego Central Jail and proceeding pro se, filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 in the United States Court of Appeals for the Ninth Circuit
“that challenges Johnson’s criminal proceedings in San Diego County Superior Court case
no. SCD310890” along with a motion to proceed in forma pauperis. 	(See ECF No. 1-3)
(copy of Ninth Circuit Order); (see ECF Nos. 1, 2) (Petition and in forma pauperis motion);
see also Johnson v. Martinez, et al., No. 26-543 (9th Cir. Feb. 2, 2026) (case docket). On
February 2, 2026, the Ninth Circuit issued an Order directing the transfer of this habeas
Petition 	and 	motion 	to 	this 	Court 	“for 	whatever 	consideration 	that 	court 	deems
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appropriate,” citing Federal Rule of Appellate Procedure 22(a) and 28 U.S.C. §§ 1631 &
2241(b), and stated that: “This transfer order is issued without regard to whether
petitioner’s claims have any merit, or satisfy applicable procedural requirements.” (ECF
No. 1-3, at 1–2.) 	The Ninth Circuit also directed that: “The petition is deemed filed on
January 16, 2026, the date it was signed.” (Id. (citing Butler v. Long, 752 F.3d 1177, 1178
n.1 (9th Cir. 2014)).) 	On February 5, 2026, this case was opened as directed. 	(See
generally docket.)
For the reasons discussed below, the Court DENIES the motion to proceed in forma
pauperis and DISMISSES the case without prejudice.
MOTION TO PROCEED IN FORMA PAUPERIS
A motion to proceed in forma pauperis made by a state prisoner must include an
affidavit with a statement of all assets showing an inability to pay the $5.00 filing fee and
“a certificate from the warden or other appropriate officer of the place of confinement
showing the amount of money or securities that the petitioner has in any account in the
institution.” R. 3(a)(2), Rules Governing § 2254 Cases (2019) [hereinafter Habeas Rules];
see also S.D. Cal. Civil Local Rule 3.2 [hereinafter CivLR]. The motion must also “contain
a certified copy of the trust fund account statement (or institutional equivalent) for the
prisoner for the 6-month period immediately preceding the filing of the suit or notice of
appeal, obtained from the appropriate official of each prison at which the prisoner is or was
confined.” CivLR 3.2; see also 28 U.S.C. § 1915(a)(2).
While Petitioner has submitted an affidavit stating that he is “unable to pay or give
security for fees and costs,” (see ECF No. 2, at 1), Petitioner has failed to provide the Court
with the required financial information necessary to evaluate this motion, i.e. the prison
certificate or the certified copy of his trust fund account statement, (see generally ECF No.
2.) Because Petitioner has not provided the Court with the required financial information,
the Court is unable to determine whether he qualifies to proceed in forma pauperis.
Accordingly, the Court DENIES the motion without prejudice to resubmission.
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Because the Court cannot proceed until Petitioner has either paid the $5.00 filing fee
or qualified to proceed in forma pauperis, this habeas case is subject to dismissal without
prejudice. See Habeas Rules 3(a).
FAILURE TO USE PROPER FORM
A Petition for Writ of Habeas Corpus must be submitted in accordance with the
Local Rules of the United States District Court of the Southern District of California. See
Habeas Rules 2(d). 	To comply with the Local Rules, petitions must be submitted on a
court-approved form and in accordance with the instructions approved by the Court. 	Id.;
CivLR HC.2(b).
Petitioner has not submitted this Petition on the proper form nor in accordance with
the local rules of this District. Therefore, the Petition is also subject to dismissal on this
ground.
BASIS FOR PETITION
It is also unclear from an initial review of the Petition both whether Petitioner is
currently in custody pursuant to the judgment of a state court and whether such detention,
rather than perhaps pre-trial detention, is the subject of the present challenge. 	While
Petitioner specifically alleges that he is “in custody (pursuant to the judgment of a state
court)” in violation of the United States Constitution (ECF No. 1, at 2), he also alleges the
San Diego Sheriff and California Superior Court “held and continues to hold applicant to
answer for a otherwise infamous crime without being on a presentment or indictment of a
grand jury” in violation of the Fifth Amendment. (Id.) Petitioner references two separate
criminal proceedings, case number PLAY7574 and case number CD310890; while his
contentions lack specifics and clarity, Petitioner appears to contend he was convicted and
sentenced to an unspecified term of imprisonment in the former case on December 12,
2025, and has been “held” in the latter case since December 11, 2025. (Id.)
Meanwhile, the San Diego County Sheriff’s Department’s website reflects that
Petitioner was arrested by San Diego State University, was booked on October 30, 2025,
is being held on $50,000 bail, and one of two cases Petitioner cites, San Diego Superior
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Court case number SCD310890, is set to be heard in San Diego Superior Court on February
23, 2026, on what appears to be a felony charge of failure to register pursuant to California
Penal Code § 290.018(b). 	See Sheriff’s Who Is in Jail, San Diego Cnty. Sheriff’s Dep’t,
https://apps.sdsheriff.net/wij/wij.aspx [https://perma.cc/U5MJ-LJDS] (last visited Feb. 11,
2026). The same website also reflects that Petitioner was at some point sentenced to “local
custody” with a projected release date of January 18, 2026. 	See id. 	At present, it is
currently well past January 18, 2026, and Petitioner does not indicate whether he is
currently being held solely on the pending charges in case number SCD310890 or whether
he is also currently incarcerated for another reason, such as pursuant to a separate judgment
of conviction.
Given the available electronic information and the lack of specificity provided in the
Petition as to the grounds for Petitioner’s current custody, it is presently unclear whether a
federal habeas challenge to his current detention is properly brought under 28 U.S.C.
§ 2241 or 28 U.S.C. § 2254. As the Ninth Circuit has explained:
Section 2254 is properly understood as “in effect implement[ing] the general
grant of habeas corpus authority found in § 2241, as long as the person is in
custody pursuant to the judgment of a state court, and not in state custody for
some 	other 	reason, 	such 	as 	pre-conviction 	custody, 	custody 	awaiting
extradition, or other forms of custody that are possible without a conviction.
White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004) (quoting Walker v. O’Brien, 216
F.3d 626, 633 (7th Cir. 2000) (alteration in original)).
“Subject matter jurisdiction under the federal habeas corpus statute, 28 U.S.C.
§ 2254(a), is limited to those persons ‘in custody pursuant to the judgment of a State.’”
Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994); see also 28 U.S.C. § 2241(c)(3). It is a
jurisdictional requirement that, at the time a habeas petition is filed, “the habeas petitioner
be ‘in custody’ under the conviction or sentence under attack.” Maleng v. Cook, 490 U.S.
488, 490–91 (1989) (citing 28 U.S.C. §§ 2241(c)(3) & 2254(a)); see Carafas v. LaVallee,
391 U.S. 234, 238 (1968).
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To the extent Petitioner seeks to challenge the constitutionality of a pre-trial
detention, he must file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241,
not 28 U.S.C. § 2254.
CONCLUSION AND ORDER
For the reasons discussed above, the Court DENIES Petitioner’s motion to proceed
in forma pauperis and DISMISSES the case without prejudice. 	To the extent Petitioner
contends he is in custody pursuant to a state court judgment and seeks to challenge the
constitutionality of that custody, in order to re-open and proceed with this case, Petitioner
must submit, no later than April 13, 2026, both (1) a completed Petition form AND (2)
either the $5.00 fee or adequate proof of Petitioner’s inability to pay the fee. To the extent
Petitioner instead contends he is not currently in custody pursuant to a state court judgment
and seeks to challenge the constitutionality of that state custody, Petitioner must instead
file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, which will be given
a different case number.
For Petitioner’s convenience, the Clerk of Court is directed to send Petitioner a
blank In Forma Pauperis Application, a blank 28 U.S.C. § 2241 Habeas Petition form, and
a blank 28 U.S.C. § 2254 Habeas Petition form together with a copy of this Order.
IT IS SO ORDERED.
Dated: February 23, 2026
___________________________
Honorable Barry Ted Moskowitz
United States District Judge
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