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Johnston v. Salmonson

United States District Court, D. Montana, Billings Division

October 11, 2018

CODY WAYNE JOHNSTON, Petitioner,
v.
JAMES SALMONSON, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE.

         On August 28, 2018, Petitioner Cody Wayne Johnston filed this action under 28 U.S.C. § 2254.[1] Johnston is a state prisoner proceeding pro se. For the reasons set forth below, Johnston's petition should be dismissed.

         I. Motion for Leave to Proceed in Forma Pauperis

         Johnston moves for leave to proceed in forma pauperis. (Doc. 2.) After reviewing the motion and supporting account statement, Johnston has sufficiently shown that he cannot afford to pay all costs that may be associated with this action. The motion to proceed in forma pauperis will be granted.

         II. 28 U.S.C. § 2254 Petition

         The Court is required to screen all actions brought by prisoners who seek relief. 28 U.S.C. § 1915(a). The Court must dismiss a habeas petition or portion thereof if the prisoner raises claims that are legally frivolous or fails to state a basis upon which relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). The Court must dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Rule 4 Governing Section 2254 Cases. A federal court may raise the failure to exhaust issue sua sponte and may summarily dismiss on that ground. See, Granberry v. Greer, 481 U.S. 129, 134 (1987). Because Mr. Johnston's claims are unexhausted, his petition should be dismissed without prejudice.

         III. Procedural History/Johnston's Claims

         Following a trial in Montana's Seventh Judicial District, Richland County, a jury found Johnston guilty of Deliberate Homicide and Tampering with Evidence. In January of 2017, Johnston was sentenced to life in prison for the Homicide and to a consecutive 10-year sentence for Tampering. (Doc. 1 at 11.)

         Johnston currently has a direct appeal pending in which he is represented by counsel. See, State v. Johnston, DA 17-0153.[2] There, Johnston argues that (1) the district court erred in punishing him for failing to abandon his claim of innocence and provide the location of the victim's body, and (2) the district erred in imposing conditions of a suspended sentence when no portion of his sentence was suspended. See generally, State v. Johnston, DA 17-0153, Br. of Appellant (filed April 27, 2018). That matter is fully briefed.[3]

         In his petition before this Court, Johnston raises claims of: (1) actual innocence and insufficient evidence to support a conviction; (2) malicious prosecution and misconduct; and, (3) ineffective assistance of counsel. See, (Doc. 1 at 1, 12, 13-15.) Johnston claims violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Id. at 2, 12. Johnston also alleges multiple state governmental organizations conspired to violate his constitutional rights in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). Id. at 15-20. Johnston asks this Court to grant his petition, vacate his illegal convictions, and release him from his unlawful sentence. Id. at 21.

         Johnston explains that he has attempted to raise these claims in the Montana Supreme Court via a state habeas corpus petition. (Doc. 1 at 2.) But because Johnston has a direct appeal pending, in which he is represented by counsel, the Court has declined to hear Johnston's petition. See, Johnston v. Salmonsen, OP 18-0367, Or. (Mont. July 10, 2018); see also (Doc. 1-1 at 64-65.) Johnston's petition was dismissed without prejudice.

         Johnston also explains that he attempted to file documents for reconsideration of his conviction based upon evidence that Ms. Waller, the victim, was seen after her disappearance, as well as an action for an immediate evidentiary hearing. (Docs. 1 at 4; 1-1 at 38); see also (Doc. 1-1at 44-45.) Johnston's documents were construed and filed as a postconviction petition. (Doc. 1-1 at 39.) The matter was subsequently dismissed by the State District Court on July 16, 2018, however, because the petition was not properly verified or filed. (Doc 1-1 at 49-51.)

         On the same date, the Richland Clerk of District Court sent a letter returning Johnston's documents and advising him that he failed to submit the requisite filing fee or verify his petition. (Doc. 1-1 at 47.) Johnston was provided with a form petition and a copy of the Montana Code provision addressing filing fees; he was also advised he would need to follow the Montana Rules of Civil Procedure. Id. It does not appear that Johnston attempted to refile a verified postconviction petition with a fee or motion to proceed in forma pauperis, but rather appealed the dismissal to the Montana Supreme Court. See, Johnston v. State, DA 18-0524, Not. (filed Sept. 4, 2018).

         Johnston asserts that he is actually innocent and has attempted to present evidence of his innocence to the state courts to no avail. Nonetheless, Johnston believes that his attempts constitute a fair presentation of his claims ...


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