* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 10 1997 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD R. JOHNSON, Petitioner-Appellant,

v. STATE OF UTAH, Respondent-Appellee. No. 97-4059 (D.C. No. 96-CV-168) (Utah)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause 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 dismis sal of his state case on double jeopardy, speedy trial, and ineffective assistance of counsel grounds. The district1 Mr. Johnson filed a motion for a certificate of ap pealability, 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 Ant iterrorism and Effective Death Penalty Act. See United States v. Kunzman , 125 F.3d 1363 (10th Cir. 1997). We grant the certificate of probable cause. -2- 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 co urt’s actions, the Utah Supreme Court granted Mr. Johnson’s motion to dismiss the p ending post-conviction appeal. Before trial, Mr. Johnson moved to dismiss the prosecution on speedy trial and double jeopardy grounds. The state courtdenied 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 a sserting three grounds for relief. First, he contends the state is subjecting him to double jeopardy by retrying him after the withdrawl of his guilty pleaand after a civil forfeiture. Second, he asserts that his lengthy pretrial incarc eration resulted in a violation of his right to a speedy trial. Third, he alleges his first set of counsel was2 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 rai sed for the first time on appeal. -3- ineffective for failing to pursue a direct appeal o f 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 stoppin g the state prosecution” could not be granted absent “special circumstances.” The court found that Mr. Johnson’s claims were without merit and therefore n o special circumstances exist in this case. Moreover, the court concluded that M r. Johnson had not exhausted his ineffective assistance of counsel claim, and th us 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 dat ed March 31, 1997.

ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge