Johnston v. Higgins

Filing 14

OPINION AND ORDER by District Judge James H. Payne; Petitioner cannot be granted relief for his requests for relief in his objection to the respondent's motion to dismiss (Re: 13 Objection ) (lsa, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA
DAVID C. JOHNSTON, Petitioner, v. HASKELL HIGGINS, Warden, Respondent. ) ) ) ) ) ) ) ) )

Case No. CIV 08-389-JHP-KEW

OPINION AND ORDER On June 5, 2009, the court dismissed petitioner's petition for a writ of habeas corpus as time barred under 28 U.S.C. § 2244(d) [Docket #10]. On July 6, 2009, he filed an objection to the court's finding that he had not filed a response to the respondent's motion to dismiss, alleging he had mailed a response to the motion on December 11, 2008 [Docket #13]. The record shows petitioner's objection erroneously was captioned as Case No. 05358-JHP, which was petitioner's previous habeas corpus case, and the response was filed in the earlier case. Petitioner asserts he is not before this court to challenge his Judgment of Conviction. Instead, he is asking the court to remand his case to the Oklahoma Court of Criminal Appeals and to instruct the OCCA to remand it to the Carter County District Court. He then wants the Carter County District Court to order the Carter County District Attorney to respond to petitioner's post-conviction issues of fact and to conduct an evidentiary hearing. Petitioner maintains this procedure is the only way he can exhaust his state court remedies. The court has reviewed the record and construed plaintiff's pro se pleadings liberally. Federal courts, however, have no supervisory jurisdiction over state courts and are without

authority to direct state courts or their officers to perform their duties. Van Sickle v. Holloway, 791 F.2d 1431, 1436 n.5 (10th Cir. 1986). See also Davis v. Lansing, 851 F.2d 72, 74 (2d Cir. 1988); Olson v. Hart, 965 F.2d 940, 942 (10th Cir. 1992). ACCORDINGLY, petitioner cannot be granted relief for his requests for relief in his objection to the respondent's motion to dismiss. IT IS SO ORDERED this 13th day of August 2010.

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