Johnson v. Premo
Order: Petition for Writ of Habeas Corpus 1 is dismissed without prejudice. Pending motions, including any informal motions for appointment of counsel, are denied as moot. In addition, the Court finds that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Accordingly, this case is not appropriate for appellate review. Signed on 6/30/2016 by Judge Michael J. McShane. (cp)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
MARTIN ALLEN JOHNSON,
JEFF PREMO, Superintendent
ORDER TO DISMISS
McSHANE, District Judge.
Penitentiary, has filed a Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 challenging his 2001 aggravated murder
conviction in Washington County resulting in a death sentence.
As a preliminary matter, I note that this Court has dismissed
without prejudice three earlier filed federal petitions for habeas
relief on the basis petitioner failed to demonstrate entitlement to
1 - ORDER TO DISMISS
bypass the requirement that he exhaust all available state-court
See Johnson v. Belleque, 3:
07-cv-00779-BR, Johnson v.
12-cv-01027-BR and Johnson v. Premo, 6:
As noted in the 2014 action, in or about January 2013, Marion
County Circuit Court Judge Donald Dickey, the jurist who presided
over petitioner's Post-Conviction trial, granted him both guiltphase and penalty-phase relief.
Since then, the Oregon Court of
Appeals affirmed Judge Dickey's ruling on March 30, 2016 and the
Petition for Review is pending before the Oregon Supreme Court.
Accordingly, given the procedural posture of petitioner's
suggest that he has exhausted the remedies available to him in the
Indeed, if Judge Dickey's ruling continues to be
affirmed on appeal, petitioner will receive an entirely new trial.
Before a federal court will consider the merits of any claims
in a 28 U.S.C. § 2254 proceeding, a petitioner seeking habeas
relief must exhaust the claims by fairly presenting them to the
state's highest court either through a direct appeal or collateral
proceedings. Rose v. Lundy, 455 U.S. 509, 519 (1982). In addition,
a petitioner must have presented the claims in a procedural context
in which their merits will be considered. Castille v. Peoples, 489
U.S. 346, 351 (1989).
The exhaustion doctrine is designed "to
2 - ORDER TO DISMISS
avoid the unnecessary friction between the federal and state court
systems that would result if a lower federal court upset a state
court conviction without first giving the state court system an
opportunity to correct its own constitutional errors."
411 U.S. at 490.
Here, as this Court has previously advised petitioner, the
Oregon court system has identified its own errors.
This Court has
entitlement to bypass the requirement that he exhaust all of his
state court remedies prior to seeking federal habeas relief.
He fails to present the Court with new arguments that would cause
it to reach a different conclusion in this action.
For these reasons, the Petition for Writ of Habeas Corpus 
is DISMISSED without prejudice.
Pending motions, including any
informal motions for appointment of counsel, are denied as moot.
In addition, the Court finds that petitioner has not made a
pursuant to 28 U.S.C. § 2253(c)(2).
Accordingly, this case is not
appropriate for appellate review.
IT IS SO ORDERED.
day of June, 2016.
Michael J. McShane
United States District Judge
3 - ORDER TO DISMISS
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