United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE.
August 28, 2018, Petitioner Cody Wayne Johnston filed this
action under 28 U.S.C. § 2254. Johnston is a state prisoner
proceeding pro se. For the reasons set forth below,
Johnston's petition should be dismissed.
Motion for Leave to Proceed in Forma Pauperis
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.
28 U.S.C. § 2254 Petition
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.
Procedural History/Johnston's Claims
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.)
currently has a direct appeal pending in which he is
represented by counsel. See, State v. Johnston, DA
17-0153. 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.
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.
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.
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.)
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).
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 ...