Johnson v. Cain

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 8, 1999
• Docket: 98-31281
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-31281 USDC No. 97-CV-2123

TERRY MICHAEL JOHNSON,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

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Appeal from the United States District Court for the Western District of Louisiana - - - - - - - - - -

May 31, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Terry Michael Johnson, Louisiana prisoner No. 292732, seeks

a certificate of appealability (COA) to appeal the district

court’s dismissal of certain of his 28 U.S.C. § 2254 claims

without prejudice for failure to exhaust state remedies and of

other claims as time-barred under 28 U.S.C. § 2244(d)(1). COA is

GRANTED and the case is VACATED AND REMANDED to the district

court for further proceedings consistent with this opinion.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-31281 -2-

The partial state records filed in this case are inadequate

to support the district court’s assumption that Johnson has not

exhausted his state remedies with regard to his claims of an

illegal arrest and insufficient evidence. See Magouirk v.

Phillips, 144 F.3d 348, 362-63 (5th Cir. 1998). Additionally,

the district court did not address Johnson’s assertion, supported

by documentary evidence in the record, that the limitations

period was tolled by a state habeas application which was pending

from April 1996 until March 14, 1997. See 28 U.S.C.

§ 2244(d)(2).

On remand, after obtaining all of Johnson’s relevant state-

court records, the district court should first address whether

the limitations period was tolled by the pendency of Johnson’s

state habeas application or whether Johnson’s federal habeas

claims are time-barred. If the court determines that Johnson’s

federal habeas application was timely, it should then address

whether Johnson’s application contains both exhausted and

unexhausted claims. If the district court determines that

Johnson’s application is not time-barred, but that some of his

claims are unexhausted, it should address whether the unexhausted

claims are “technically exhausted” because they are procedurally

barred under state law and, thus, subject to federal review under

the standards applicable to procedurally defaulted claims. See

Jones v. Jones, 163 F.3d 285, 296 (5th Cir. 1998). If the court

determines that Johnson’s application contains both exhausted and

unexhausted claims, Johnson should be afforded an opportunity to

amend his application to present only his claims which are No. 98-31281 -3-

exhausted before his application is dismissed for failure to

exhaust state remedies. Rose v. Lundy, 455 U.S. 509, 5518-33

(1982).

COA GRANTED; VACATED AND REMANDED.