Johnson v. Hobbs

Filing 28

ORDER APPROVING AND ADOPTING IN PART 26 PROPOSED FINDINGS AND RECOMMENDED DISPOSITION; dismissing this case without prejudice; and denying a certificate of appealability. Signed by Judge Kristine G. Baker on 04/07/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ROBERT EUGENE JOHNSON
ADC #78181
v.

PETITIONER

Case No. 5:12-cv-00370-KGB-JTR

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

The Court has reviewed the Proposed Findings and Recommended Disposition submitted
by United States Magistrate Judge J. Thomas Ray (Dkt. No. 26). No objections have been filed,
and the time for filing objections has passed. After careful review, the Court concludes that the
Proposed Findings and Recommended Disposition should be, and hereby are, approved and
adopted in part as this Court’s findings.
The Court declines to adopt the Proposed Findings and Recommended Disposition to the
extent that it states that a stand-alone actual innocence claim is not cognizable (see Dkt. No. 26,
at 7 n.4). The Supreme Court and Eighth Circuit have suggested that a stand-alone actual
innocence claim may be cognizable and provide an avenue for habeas relief. See McQuiggin v.
Perkins, 133 S. Ct. 1924, 1931 (2013) (“We have not resolved whether a prisoner may be
entitled to habeas relief based on a freestanding claim of actual innocence”); Nooner v. Hobbs,
689 F.3d 921, 922 n.7 (8th Cir. 2012) (“The Supreme Court has suggested that a stand-alone
claim of actual innocence may be cognizable.”).
Regardless, because a state court remedy is available for petitioner Robert Eugene
Johnson’s Brady violation claim, the Court does not reach the merits of Mr. Johnson’s standalone actual innocence claim. See Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005) (“When

a state court remedy is available for a state prisoner’s unexhausted claim, the federal habeas
court must defer action until the claim is exhausted, . . . by dismissing the federal petition
without prejudice . . . .”).
The Court therefore orders that this case is dismissed without prejudice. A certificate of
appealability is denied pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases.
SO ORDERED this the 7th day of April, 2015.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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