Johnson v. Hobbs

Filing 6

ORDER: If the state court refuses to rule on Petitioner's Rule 37 petition, this Court is inclined to appoint counsel for Petitioner and proceed with an evidentiary hearing. However, before scheduling an evidentiary hearing, the Court will allow Respondent 30 days to determine if a ruling on the Rule 37 petition is forthcoming. Signed by Magistrate Judge Joe J. Volpe on 2/8/2013. (srw)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
TONY B. JOHNSON,
ADC # 068273,
v.

PETITIONER

5:12CV00395-JLH-JJV

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

Mr. Johnson was convicted of attempted capitol murder on April 15, 2008, in the Pulaski
County Circuit Court. (Doc. No. 2 at 1.) He was sentenced to life in prison in addition to a fifteenyear enhancement for using a firearm. (Id.) Mr. Johnson appealed his conviction to the Arkansas
Supreme Court, which affirmed his conviction on January 9, 2009. (Id. at 2.) Mr. Johnson then filed
a Rule 37 petition with the Pulaski County Circuit Court on March 9, 2009. (Id.) The circuit court
has not issued a judgement on the merits of Mr. Johnson’s petition. (Id.) In 2010, Mr. Johnson
petitioned the Arkansas Supreme Court for a writ of mandamus which was denied because it was
improperly filed. (Doc. No. 5-5.)
Mr. Johnson filed the instant Petition for Writ of Habeas Corpus (Doc. No. 2), arguing that
his Rule 37 petition was lost by the Pulaski County Circuit Court, and therefore, he must resort to
federal habeas relief. (Id. at 10.) In his Petition he alleges that he is imprisoned in violation of his
constitutional rights because he had ineffective assistance of counsel, he was denied his right be free
from involuntarily self-incrimination, and his sentence amounts to cruel and unusual punishment.
(Id. at 2.)
Before filing a federal habeas petition, a state inmate must first “fairly present” the substance
of his or her federal habeas claims to the appropriate state courts. Murphy v. King, 652 F.3d 845,
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848-49 (8th Cir. 2011) (citing Baldwin v. Reese, 541 U.S. 27, 29 (2004)). The fair-presentment
requirement exists to allow the respective “state the ‘opportunity to pass upon and correct’ alleged
violations of its prisoners’ federal rights.” Murphy, 652 F.3d at 849 (quoting Duncan v. Henry,
513 U.S. 364, 365 (1995) (citations omitted)); see also Picard v. Connor, 404 U.S. 270, 275 (1971)
(“We have consistently adhered to this federal policy, for ‘it would be unseemly in our dual system
of government for a federal district court to upset a state court conviction without an opportunity to
the state courts to correct a constitutional violation.’” (quoting Darr v. Burford, 339 U.S. 200, 204
(1950))); Lenza v. Wyrick, 665 F.2d 804, 807-08 (8th Cir. 1981).
Mr. Johnson’s Rule 37 petition has never been addressed. If the state court refuses to rule
on the petition, this Court is inclined to appoint counsel for Petitioner and proceed with an
evidentiary hearing. However, before scheduling an evidentiary hearing, the Court will allow
Respondent thirty (30) days to determine if a ruling on the Rule 37 petition is forthcoming. If
Respondent discovers any pertinent information regarding the Rule 37 petition, he should notify the
Court forthwith.
IT IS SO ORDERED this 8th day of February, 2013.

JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE

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