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Johnson v. Ramey

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

June 19, 2019

OLIVER JOHNSON, Petitioner,
v.
EILEEN RAMEY, [1] Respondent.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Petitioner Oliver Johnson (“Petitioner”) (Doc. 1). This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) (Doc. 11).[2] After reviewing the case, the undersigned has determined that Petitioner is not entitled to relief. As a result, the undersigned will RECOMMEND that the Petition be DENIED and the matter DISMISSED.

         I. BACKGROUND

         On September 9, 2011, Petitioner was convicted by a jury in the Circuit Court of St. Louis County of second-degree robbery (Doc. 17-6 at 2, 104). On December 16, 2011, the Circuit Court sentenced Petitioner to a term of 30 years in the Missouri Department of Corrections (Id. at 128-31). Petitioner appealed the judgment, raising two claims:

(1) The trial court erred and abused its discretion in failing to enter an order dismissing the charges with prejudice against Petitioner because the Sate failed to bring him to trial within the 180-day time limit specified in Section 217.490, the Interstate Agreement on Detainers; and
(2) The trial court erred in overruling defense counsel's motion to suppress identifications and in admitting evidence about the identifications violating Petitioner's rights to a fair trial, to counsel, and to due process of law in that Petitioner had a right to counsel at his lineup during this “critical stage” of his criminal proceedings because adversarial proceedings had begun against him and Petitioner was represented by counsel before the identification, and Petitioner was not afforded the ability to consult with, or have, counsel present during the lineup.

(Doc. 17-1). On November 5, 2013, the Missouri Court of Appeals affirmed Petitioner's conviction and sentence on direct appeal (Doc. 17-3; State v. Johnson, 412 S.W.3d 917 (Mo.Ct.App. 2013)).

         On February 23, 2012, Petitioner filed a Motion to Vacate, Set Aside or Correct the Judgment or Sentence under Missouri Supreme Court Rule 29.15 (Doc. 17-12 at 6-14). On January 27, 2014, with the assistance of counsel, Petitioner filed an Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence (Id. at 15-36). The post-conviction relief court, after conducting an evidentiary hearing, denied Petitioner's post-conviction motion on July 25, 2014 (Id. at 89-98). Petitioner filed an appeal raising the following three issues:

(1) The motion court clearly erred in denying Petitioner's request for relief after a hearing because he proved facts showing he was denied his rights to due process and effective assistance of counsel in that trial counsel failed to adequately and competently impeach a critical state's witness, Shirley Hill;
(2) The motion court clearly erred in denying Petitioner's request for relief after a hearing because he proved facts showing he was denied his rights to due process and effective assistance of counsel in that trial counsel failed to call Starr Poirrier as a witness and this decision was not a result of reasonable trial strategy; and
(3) The motion court clearly erred in denying Petitioner's request for relief after a hearing because he proved facts showing he was denied his rights to due process and effective assistance of counsel in that trial counsel represented Petitioner despite having a conflict of interest.

         (Doc. 17-7). On September 8, 2015, the Missouri Court of Appeals affirmed the dismissal of Petitioner's post-conviction relief motion (Doc. 17-9).

         On April 29, 2016, Petitioner filed a pro se Motion to Recall the Mandate in his direct appeal case raising the following two claims:

(1) Direct appeal counsel was ineffective for failing to properly brief the court of appeals on the Speedy Trial Act and present supporting evidence; and
(2) Direct appeal counsel was ineffective for failing to raise the claim and brief the court on the issue that the trial judge abused his discretion by denying Petitioner's motion to dismiss for lack of jurisdiction and refusing to provide counsel with certified copies of all Petitioner's speedy trial requests.

(Doc. 17-18). That same day, Petitioner filed a Motion to Transfer his Motion to Recall the Mandate to the Supreme Court (Doc. 17-14). The Missouri Court of Appeals denied Petitioner's Motions on June 20, 2016. See State v. Johnson, No. ED97856 (Mo.Ct.App. 2016). On August 17, 2016, Petitioner filed a Motion for Leave to File Application for Transfer out of Time which was subsequently denied by the Missouri Supreme Court on November 1, 2016 (See Doc. 24).

         On July 7, 2016, Petitioner filed his Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody raising the follow four grounds for relief:

(1) The trial court abused its discretion by failing to dismiss Petitioner's case due to a violation of the ...

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