935 F. 2d 278 - Johnson v. Kaiser

Petitioner-appellant Clinton Ray Johnson appeals pro se from the denial of a certificate of probable cause to appeal the dismissal of his 28 U.S.C. Sec. 2254 habeas action and the denial of leave to appeal in forma pauperis. See Fed.R.App.P. 22(b) & 24(a); 10th Cir.R. 22.1 & 24.1. Johnson was convicted by a jury of forcible oral sodomy and attempted rape. He appealed the conviction to the Oklahoma Court of Criminal Appeals. While the direct appeal in state court was pending, Johnson brought this federal habeas action. The district court held that, because Johnson's direct appeal was still pending before the Court of Criminal Appeals, Johnson failed to meet the exhaustion requirement for federal habeas review. Johnson v. Kaiser, No. Civ. 90-1885-R, unpub. order (W.D.Okla., Dec. 4, 1990). The district court dismissed Johnson's action, denied him leave to appeal in forma pauperis and declined to grant a certificate of probable cause.

During the pendency of this federal habeas appeal, Johnson's state court direct appeal was decided and his conviction affirmed. Johnson v. State of Oklahoma, No. F-89-706, unpub. order (Okla.Crim.App. Mar. 19, 1991). Johnson's subsequent petition for rehearing was denied by the Oklahoma court. Johnson v. State of Oklahoma, No. F-89-706, unpub. order (Okla.Crim.App., April 4, 1991). Johnson has moved to file a supplemental brief in this court, discussing the effect of the affirmance of his direct criminal appeal.

In light of these circumstances, we remand this case to the district court for reconsideration. Petitioner should be given an opportunity to amend his petition, but we express no opinion on exhaustion or the merits. Concerning this appeal, petitioner is GRANTED leave to proceed in forma pauperis and his request for a certificate of probable cause is GRANTED. His motion for leave to file a supplemental brief is DENIED.

SO ORDERED. The mandate shall issue forthwith.