Johnson v. State of Maryland

Filing 8

MEMORANDUM. Signed by Judge J. Frederick Motz on 7/21/2015. (c/m 7/22/15 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

STEPHEN MICHAEL JOHNSON, #155865
Petitioner,
v.

*

STATE OF MARYLAND
Respondent.

*

*

CIVIL ACTION NO. JFM-15-1110

*****
MEMORANDUM
Petitioner Stephen Michael Johnson seeks habeas corpus relief pursuant to 28 U.S.C.

S

2254, attacking his convictions in the Circuit Court for Charles County in 1980, based upon
newly discovered evidence "taken from the scene (of the crime]."l

ECF No.1.

filed a limited answer to the petition and Johnson has filed a reply?
review, the court finds no need for an evidentiary hearing.

Respondent has

ECF Nos. 6 & 7. After

See Rule 8(a), Rules Governing

Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2014); see
also Fisher v. Lee, 215 F.3d 438,455
~28

U.S.C.

S 2254(e)(2)).

(4th Cir. 2000) (petitioner not entitled to a hearing under

For reasons to follow the petition shall be dismissed without prejudice.
Background and Procedural History

In October of 1980, Johnson was convicted of first-degree sexual assault, assault, and
kidnapping in the Circuit Court for Charles County, Maryland.

See ECF No. 6-2.

sentenced to life in prison.

S

In 1-985, Johnson raised a 28 U.S.c.

~,

conviction in this court. See ECF NO.6-I.

He was

2254 challenge to his 1980

The petition was denied on the merits by this court

In his sole claim, Johnson. alleges that evidence taken from the scene, i.e., tire tracks, a
cigarette pack, a T-shirt of the victim and a sex-crime kit, existed. ECF NO.1 at pg. 5.
Johnson has also filed a motion for appointment of counsel and to move forward on his
writ of habeas corpus. ECF Nos. 4 & 5. For reasons to follow the motions shall be denied.

and the appeal was dismissed by the United States Court of Appeals for the Fourth Circuit.
Johnson does not refute the fact that he submitted this earlier filing.
The court shall withhold comment on the timeliness of the petition and observes that
under 28 U.S.C.

S 2244,

Johnson may only file a second or successive habeas corpus petition if

he has first moved the appropriate circuit court for an order authorizing the district court to
consider his application.

See 28 U.S.c.

(11 th Cir. 1996). Johnson's first

S 2254

S 2244(b)(3);

Felker v. Turpin, 83 F.3d 1303, 1305-07

application was dismissed on the merits. The pending

petition is successive and this court may not consider it until the Fourth Circuit enters an order
authorizing this court to do so.3 See 28 U.S.C.

S 2244(b)(3)(A);

see also In re Vial, 115 F.3d

1192, 1197-98 (4th Cir. 1997). Because it does not appear that Johnson has complied with this
"gatekeeper" provision, the pending application for habeas corpus relief must be dismissed
pursuant to 28 U.S.C.

S 2244(b)(3).

The United States Court of Appeals for the Fourth Circuit has set forth instructions for
the filing of a "motion" to obtain the aforementioned

authorization

requirements and deadlines for filing the "motion" are extensive.

Order.

The procedural

Consequently, this court has

attached hereto a packet of instructions promulgated by the Fourth Circuit which addresses the
comprehensive procedure to be followed should Johnson wish to seek authorization to file a
successive petition.

It is to be emphasized that Johnson must file the "motion" with the Fourth

Circuit and obtain authorization to file his successive petition before this court may examine his
claims.

In United States v. Hairston, 754 F.3d 258 (4th Cir. 2014), the Fourth Circuit held that an
inmate's numerically second 28 U.S.C. S 2255 motion, based on the recent vacatur of his state conviction,
was not a second or successive motion for purposes of 28 U.S.c. S 2255(h) "where the basis for the claim
did not arise until after the district court denied his first S 2255 motion." Id. at 259. The analysis in
Hairston is not applicable here.

2

In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court held that "[w]hen the
district court denies a habeas petition on procedural grounds without reaching the prisoner's
underlying constitutional

claim, a COA

[certificate of appealability]

should issue when the

prisoner shows, at least, that ... jurists of reason would find it debatable whether the district court
was correct in its procedural ruling."

Slack, 529 U.S. at 484.

Johnson does not satisfy this

standard, and the court declines to issue a certificate of appealability.

Date: July~ 2014
J

rederick Motz
nited States District Judge

3