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Johnson v. Cassady

United States District Court, E.D. Missouri, Eastern Division

November 10, 2016

OLIVER JOHNSON, Petitioner,
v.
JAY CASSADY, Respondent.

          MEMORANDUM AND ORDER

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Petitioner's Motion for Reconsideration (Doc. 12). Petitioner requests the Court reconsider the July 20, 2016 Memorandum and Order issued by the Honorable Shirley Padmore Mensah denying Petitioner's Motion to Stay and Abey (Doc. 7). Petitioner has also filed an interrelated Motion for Leave to File Notice of the Beginning of Collateral Review Proceedings (Doc. 15) in which he seeks leave to file a “Notice of Transfer Proceedings from the Denial of a Motion to Recall the State Court Mandate in the State Appeallate [sic] Court Finally Docketed in the Missouri Supreme Court” (Doc. 16). As a preliminary matter, the Court will grant Petitioner's Motion for Leave to File Notice of the Beginning of Collateral Review Proceedings (Doc. 15). The Notice has already been filed on the docket and the Court will consider the Notice as it relates to Petitioner's Motion for Reconsideration (See Doc. 16). For the following reasons, Petitioner's Motion for Reconsideration (Doc. 12) will be DENIED.

         Petitioner filed the current action pursuant to Section 2254 on July 7, 2016 (Doc. 1) asserting the following four grounds for relief:

(1) The trial judge abused his discretion by failing to dismiss the case for lack of jurisdiction due to a violation of the Speedy Trial Act (Doc. 1 at 16);
(2) The trial court erred by denying Petitioner's Motion to Dismiss under the Speedy Trial Act (Doc. 1 at 29);
(3) The trial court erred in overruling defense counsel's Motion to Suppress Identifications and in admitting evidence about the identifications (Doc. 1 at 30);
(4) Petitioner's trial counsel was ineffective by failing to represent petitioner in the same manner as a reasonable, competent attorney would have done under the same circumstances which prejudice petitioner at trial (Doc. 1 at 34). Specifically,
(a) Counsel failed to adequately impeach Shirley Hill,
(b) Counsel failed to call Star Poirrer as a witness, and
(c) Counsel represented Petitioner despite having a conflict of interest (Doc. 1 at 34-38).

         Petitioner also filed a Motion to Stay and Abey pursuant to Rhines v. Weber, 544 U.S. 269 (2005) concurrently with his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 5). In support of his Motion, Petitioner indicated that he filed a motion in his direct appeal case to recall the mandate on April 29, 2016. See Johnson v. Missouri, No. ED97856 (Mo.Ct.App.). On July 20, 2016, Judge Shirley Padmore Mensah denied Petitioner's Motion because the Appellate Court denied Petitioner's motion to recall the mandate on June 20, 2016. See id.

         On August 4, 2016, Petitioner filed the current Motion for Reconsideration indicating his intent to file a Motion for Leave to File Application for Transfer Out of Time with the Missouri Supreme Court (Doc. 13). Indeed, on August 17, 2016, Petitioner's Motion for Leave to File Application for Transfer Out of Time was filed with the Missouri Supreme Court. See Johnson v. Missouri, No. SC95886 (Mo.). In his Motion, Petitioner raises two issues:

(1) Direct appeal counsel was ineffective for failing to brief the Missouri Court of Appeals on the Federal Speedy Trial Act; and
(2) Direct appeal counsel was ineffective for failing to raise the claim that the circuit court abused its discretion by denying Petitioner's motion to dismiss and for refusing ...

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