                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 10 1997

                                  TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk


 DONALD R. JOHNSON,

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

          Respondent-Appellee.



                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause 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 dismissal of his state case on double

jeopardy, speedy trial, and ineffective assistance of counsel grounds. The district

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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 court’s actions, the Utah Supreme

Court granted Mr. Johnson’s motion to dismiss the pending post-conviction

appeal. Before trial, Mr. Johnson moved to dismiss the prosecution on speedy

trial and double jeopardy grounds. The state court denied 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 asserting three grounds for

relief. First, he contends the state is subjecting him to double jeopardy by

retrying him after the withdrawl of his guilty plea and after a civil forfeiture.

Second, he asserts that his lengthy pretrial incarceration resulted in a violation of

his right to a speedy trial. Third, he alleges his first set of counsel was


       1
         Mr. Johnson filed a motion for a certificate of appealability, 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 Antiterrorism 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-
ineffective for failing to pursue a direct appeal of 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 stopping the state prosecution” could

not be granted absent “special circumstances.” The court found that Mr.

Johnson’s claims were without merit and therefore no special circumstances exist

in this case. Moreover, the court concluded that Mr. Johnson had not exhausted

his ineffective assistance of counsel claim, and thus 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 dated March 31, 1997.


                                               ENTERED FOR THE COURT


                                               Stephanie K. Seymour
                                               Chief Judge




      2
        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 raised for the first time on
appeal.

                                         -3-
