F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS DEC 10 1997
TENTH CIRCUIT PATRICK FISHER
Clerk
DONALD R. JOHNSON,
Petitioner-Appellant,
No. 97-4059
v. (D.C. No. 96-CV-168)
(Utah)
STATE OF UTAH,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
While awaiting trial on several state charges, Mr. Johnson filed this habeas
petition under 28 U.S.C. § 2254, seeking the dismissal of his state case on double
jeopardy, speedy trial, and ineffective assistance of counsel grounds. The district
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
court dismissed his petition without prejudice. Mr. Johnson appeals, and we
affirm 1.
Mr. Johnson originally pled guilty to two counts of aggravated sexual abuse
of a child. He filed a pro se motion for an order vacating his plea. The state trial
court granted his motion and scheduled a trial date. At the same time, Mr.
Johnson had a post-conviction appeal pending in Utah Supreme Court requesting
that his plea be vacated. In light of the trial court’s actions, the Utah Supreme
Court granted Mr. Johnson’s motion to dismiss the pending post-conviction
appeal. Before trial, Mr. Johnson moved to dismiss the prosecution on speedy
trial and double jeopardy grounds. The state court denied the motion but vacated
the trial date to allow Mr. Johnson to move for an interlocutory appeal of this
order. The Utah Supreme Court declined to hear the interlocutory appeal.
Mr. Johnson filed this petition for habeas corpus asserting three grounds for
relief. First, he contends the state is subjecting him to double jeopardy by
retrying him after the withdrawl of his guilty plea and after a civil forfeiture.
Second, he asserts that his lengthy pretrial incarceration resulted in a violation of
his right to a speedy trial. Third, he alleges his first set of counsel was
1
Mr. Johnson filed a motion for a certificate of appealability, which we
construe as one for a certificate of probable cause since he filed his petition in
district court before the effective date of the Antiterrorism and Effective Death
Penalty Act. See United States v. Kunzman, 125 F.3d 1363 (10th Cir. 1997). We
grant the certificate of probable cause.
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ineffective for failing to pursue a direct appeal of his guilty plea (which Mr.
Johnson eventually got withdrawn and vacated). The district court dismissed the
petition without prejudice. The court reasoned that even if Mr. Johnson had
exhausted his claims, under Dolack v. Allenbrand, 548 F.2d 891, 894 (10th Cir.
1977), a pretrial habeas petition “aimed at stopping the state prosecution” could
not be granted absent “special circumstances.” The court found that Mr.
Johnson’s claims were without merit and therefore no special circumstances exist
in this case. Moreover, the court concluded that Mr. Johnson had not exhausted
his ineffective assistance of counsel claim, and thus presented at least a mixed
petition requiring dismissal. See Rose v. Lundy, 455 U.S. 509 (1982).
On appeal, Mr. Johnson makes the same arguments. 2 After reviewing Mr.
Johnson’s appellate brief and the record, we AFFIRM for substantially the
reasons set forth in the district court’s order dated March 31, 1997.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
2
Mr. Johnson also asserts he has been physically unable to file a direct
appeal of his recent state court conviction due to the conditions of his
confinement. We decline to consider new issues raised for the first time on
appeal.
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