Johnson v. Premo

Filing 5

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,
Petitioner,
v.
JEFF PREMO, Superintendent
OSP,
Respondent.

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6:16-cv-00841-MC

ORDER TO DISMISS

McSHANE, District Judge.
Petitioner,

an

inmate

on

death

row

at

the

Oregon

State

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
remedies.

See Johnson v. Belleque, 3:

07-cv-00779-BR, Johnson v.

Premo, 6:

12-cv-01027-BR and Johnson v. Premo, 6:

14-00712-JO.

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
state-court

proceedings,

it

remains

that

he

cannot

plausibly

suggest that he has exhausted the remedies available to him in the
Oregon courts.

Indeed, if Judge Dickey's ruling continues to be

affirmed on appeal, petitioner will receive an entirely new trial.

DISCUSSION
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

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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."

Preiser,

411 U.S. at 490.
Here, as this Court has previously advised petitioner, the
Oregon court system has identified its own errors.
three

times

determined

that

petitioner

could

This Court has

not

demonstrate

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.
CONCLUSION
For these reasons, the 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

pursuant to 28 U.S.C. § 2253(c)(2).

of

a

constitutional

Accordingly, this case is not

appropriate for appellate review.
IT IS SO ORDERED.
DATED this

30th

day of June, 2016.

Michael J. McShane
United States District Judge

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