Johnson v. Vannoy

Filing 5

MEMORANDUM ORDER. IT IS ORDERED that Petitioner, within thirty (30) days from the date of this order, expressly state whether he seeks review of the unexhausted claim in this court at this time, whether he wishes to dismiss same, or whether he wish es to dismiss this entire petition to re-file at a later date after he exhausts state court remedies on all claims asserted herein. Failure to comply with this court order will result in dismissal of this suit pursuant to rules 41(b) and 16(f) of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Mark L Hornsby on 1/6/2021. (crt,Keller, J)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
GREGORY LYNN JOHNSON

CIVIL ACTION NO. 20-1193-P

VERSUS

JUDGE FOOTE

WARDEN DARREL VANNOY

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Before the court is a petition for writ of habeas corpus filed by pro se petitioner
Gregory Lynn Johnson (“Petitioner”), pursuant to 28 U.S.C. §2254. This petition was
received and filed in this court on September 15, 2020. Petitioner is incarcerated at the
Louisiana State Penitentiary in Angola, Louisiana. He challenges his state court conviction
and sentence. He names Warden Darrel Vannoy as respondent.
On November 3, 2016, Petitioner was convicted of one count of second degree
murder in the Louisiana First Judicial District Court, Parish of Caddo. On December 5,
2016, he was sentenced to life imprisonment at hard labor without benefit of parole,
probation, or suspension of sentence.
In support of this petition, Petitioner alleges (1) the trial court prevented the
admission of pertinent character traits of the victim in violation of his due process rights,
(2) his trial counsel was ineffective because he offered inadequate advice about taking a
plea deal, (3) his trial counsel was ineffective because he had a conflict with him, (4) his
trial counsel was ineffective because he failed to retain or call a bullet/firearm expert, (5)
his trial counsel was ineffective because he failed to retain or call a DNA expert, (6) his
trial counsel was ineffective because he failed to impeach the testimony of Glover and/or

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Howard, and (7) his appellate counsel was ineffective because the trial record was
incomplete.
Petitioner has failed to demonstrate that he properly exhausted claim (1) regarding
the omission of pertinent character traits of the victim during the trial. It is well settled that
a petitioner seeking federal habeas corpus relief cannot collaterally attack his state court
conviction in federal court until he has exhausted available state remedies. Rose v. Lundy,
455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Minor v. Lucas, 697 F.2d 697 (5th
Cir. 1983). This requirement is not a jurisdictional bar but a procedural one erected in the
interest of comity providing state courts first opportunity to pass upon and correct alleged
constitutional violations. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d
438, 443 (1971); Shute v. Texas, 117 F.3d 233 (5th Cir. 1997). Additionally, under 28
U.S.C. §2254(b)(1)(A)1 the district court is precluded from granting habeas relief on an
unexhausted claim.
Considering the above procedural history, the instant petition constitutes a “mixed”
petition, having both exhausted and unexhausted claims. When a habeas petition includes
both exhausted claims and unexhausted claims, the district court must dismiss the entire
"mixed petition." Murphy v. Johnson, 110 F.3d 10, 11, (5th Cir. 1997), quoting, Rose v.

1

§ 2254 provides, in pertinent part:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that-(A) the applicant has exhausted the remedies available in the courts of the
State;

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Lundy, 455 U.S. at 522, 102 S.Ct. at 1205; Graham v. Johnson, 94 F.3d 958, 968 (5th Cir.
1996).
Because all of Petitioner’s claims have not been exhausted in the state courts, this
entire petition is subject to dismissal. On the other hand, if Petitioner dismisses his
unexhausted claim and asserts only his exhausted claim(s), he may be entitled to go
forward. However, Petitioner is put on notice that dismissing the unexhausted claim is not
without consequence. If he should dismiss the unexhausted claim at this time, he may be
precluded from bringing this claim in the future. Specifically, the law with respect to
successive petitions requires a petitioner to obtain authorization from the appropriate court
of appeals before filing a second or successive petition. 28 U.S.C. §2244(b)(3)(A)2.
Additionally, any future filings may be barred by the one-year statute of limitations
imposed by 28 U.S.C. §2244(d)(1)3.

2

28 U.S.C. § 2244(b)(3)(A), provides in pertinent part, “[b]efore a second or successive
application permitted by this section [28 U.S.C. § 2254] is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the district
court to consider the application.”
3

As a general rule, section 2244(d)(1)(A) requires that a petitioner bring his section 2254 claims
within one year of the date his conviction became final. 28 U.S.C. § 2244(d) provides,
(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-(A) the date on which the judgment became final by conclusion of direct review
or the expiration of the time for seeking such review;
...
The section also sets up statutory exceptions which can, in appropriate cases, extend the
time for filing a federal habeas petition beyond the one year period after final conviction if
the state imposes an unconstitutional impediment to the filing of a federal habeas petition,
if the Supreme Court recognizes a new constitutional right and makes that right retroactive
to cases on collateral review, or if the petitioner is unable through the exercise of due
diligence to discover the factual predicate of the petitioner’s federal habeas claim. 28
U.S.C. § 2244(d)(1)(B)(C) and (D).

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Thus, Petitioner has three alternatives. He may choose to: (1) maintain this petition
with the unexhausted claim with full knowledge that the entire petition is subject to
dismissal; or (2) indicate to the court that he wishes to dismiss the unexhausted claim with
full knowledge that he will risk the opportunity to present this claim in a successive
petition; or (3) dismiss this entire petition so that he can exhaust all of the claims before
refiling with full knowledge that he may be barred by the one-year time limitation provision
on federal habeas review.
Accordingly;
IT IS ORDERED that Petitioner, within thirty (30) days from the date of this order,
expressly state whether he seeks review of the unexhausted claim in this court at this time,
whether he wishes to dismiss same, or whether he wishes to dismiss this entire petition to
re-file at a later date after he exhausts state court remedies on all claims asserted herein.
Failure to comply with this court order will result in dismissal of this suit
pursuant to rules 41(b) and 16(f) of the Federal Rules of Civil Procedure.
THUS DONE AND SIGNED in Chambers at Shreveport, Louisiana, this 6th day
of January 2021.

The time during which a “properly filed application for State post-conviction” review is
pending shall not be counted toward any period of limitation under this section. 28 U.S.C. 2244
(d)(2).

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