Johnston v. State of Missouri

Filing 8

OPINION, MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner shall, no later than thirty (30) days from the date of this order, show cause why the petition for writ of habeas corpus should not be dismissed without prejudice for failure to exha ust state remedies. IT IS FURTHER ORDERED that petitioner's motion for leave to proceed in forma pauperis [Doc. 2 ] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall substitute Penny Milburn for the State of Missouri as respondent in this action. Failure to comply with this order may result in the dismissal of this action. (Show Cause Response due by 2/2/2012). Signed by Honorable Henry E. Autrey on 1/3/12. (TRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RUSSELL W. JOHNSTON,
Petitioner,
v.
PENNY MILBURN,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:11CV2197 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 and motion to proceed in forma pauperis. According
to the petition, petitioner is currently pursuing postconviction relief in state court. As
a result, the Court will order petitioner to show cause why this action should not be
dismissed without prejudice for failure to exhaust state remedies. Additionally, the
Court will permit petitioner to proceed without payment of the filing fee.
Petitioner pled guilty in two separate criminal actions to forgery and felonious
restraint.1 Petitioner received prison sentences of seven years and four years,
respectively, with the sentences to be served consecutively. Petitioner did not appeal.

1

State v. Johnston, No. 07E9-CR00482-01 (42nd Judicial Circuit, Iron County)
(forgery); State v. Johnston, No. 08E9-CR00079-01 (42nd Judicial Circuit, Iron
County) (restraint).

Petitioner filed a single Rule 24.035 motion for both convictions.2 After a hearing,
the postconviction court ordered that petitioner be resentenced. On November 16,
2010, petitioner was given amended sentences of six years and three years, to be
served consecutively. Petitioner did not appeal. On June 10, 2011, petitioner filed
a second Rule 24.035 motion challenging the amended sentences.3 The court granted
petitioner leave to proceed in forma pauperis and appointed counsel for petitioner.
The case is currently in progress.
Petitioner filed the instant petition on December 12, 2011, which is the date it
was received by the prison mail system. Petitioner is currently incarcerated at the
Southeast Correctional Center, where Penny Milburn is the Acting Warden.
Rule 4 of the Rules Governing § 2254 Cases in the United States District
Courts provides that a district court shall summarily dismiss a § 2254 petition if it
plainly appears that the petitioner is not entitled to relief.
In the absence of exceptional circumstances, a state prisoner must exhaust
currently available and adequate state remedies before invoking federal habeas corpus
jurisdiction. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973).
Petitioner has not exhausted available state remedies because he has a motion for
postconviction relief pending before the state court and the state court has accepted
2

Johnson v. State, No. 08IR-CC00045 (42nd Judicial Circuit, Iron County).

3

Johnson v. State, No. 11IR-CC00032 (42nd Judicial Circuit, Iron County).
-2-

the motion for review. As a result, the Court will direct petitioner to show cause
within thirty days of the date of this order why this action should not be dismissed
without prejudice.
Finally, the Court has reviewed petitioner’s financial information and finds that
he is unable to pay the filing fee. Consequently, the Court will grant petitioner’s
motion to proceed in forma pauperis.
Accordingly,
IT IS HEREBY ORDERED that petitioner shall, no later than thirty (30) days
from the date of this order, show cause why the petition for writ of habeas corpus
should not be dismissed without prejudice for failure to exhaust state remedies.
IT IS FURTHER ORDERED that petitioner’s motion for leave to proceed
in forma pauperis [Doc. 2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall substitute Penny Milburn
for the State of Missouri as respondent in this action.
Failure to comply with this order may result in the dismissal of this action.
Dated this 3rd day of January, 2012.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

-3-