Rogers v. Denny

Filing 24

MEMORANDUM AND ORDER re: 1 filed by Wayne Rogers..IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for a Writ of Habeas Corpus under 28 U.S.C. ' 22 54 be denied and be dismissed with prejudice byseparate judgment entered this date. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal. a Writ of Habeas Corpus under 28 U.S.C. ' 2254 be denied and be dismissed with prejudice by separate judgment entered this date. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal. Signed by Magistrate Judge Abbie Crites-Leoni on 6/11/14. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WAYNE ROGERS,

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Petitioner,
vs.
JAMES HURLEY,1
Respondent.

Case No. 4:11CV0020 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Wayne Rogers for a Writ of Habeas
Corpus under 28 U.S.C. ' 2254.
Procedural History
Petitioner is presently incarcerated at the Northeast Correctional Center in Bowling Green,
Missouri, pursuant to the Sentence and Judgment of the Circuit Court of the City of St. Louis,
Missouri. See Ex. B at 12-13.2 On June 23, 1995, following a jury trial, petitioner was found
guilty of first degree attempted robbery. See Ex. A2 at 134. Petitioner was sentenced to thirty
years imprisonment. See Ex. B at 12.

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James Hurley is the Warden at Northeast Correctional Center, the institution to which
petitioner has been transferred. Consequently, James Hurley will be substituted for Larry Denney
as the proper party respondent in this action. See Rule 2(a), Rules Governing Section 2254 Cases
in the United States District Courts.
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Page references for the Respondent’s Exhibits will be to the page numbers created by the
docket clerk when the exhibits were docketed.
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In his sole point raised on direct appeal of his conviction, Petitioner argued that the
evidence was insufficient to sustain his conviction. See Ex. C. The Missouri Court of Appeals
for the Eastern District affirmed Petitioner=s conviction on December 2, 1997. See Ex. E. The
mandate was issued on December 31, 1997. See Ex. F.
On December 2, 2010, Petitioner, pro se, filed the instant Petition for a Writ of Habeas
Corpus and cited two grounds for relief. In his first ground for relief, Petitioner argues that the
Circuit Court erred in denying his motion to reopen his post-conviction proceeding. In his
second ground for relief, Petitioner argues that he was improperly sentenced as a class X
offender. On February 28, 2011, Respondent filed a Response to Order to Show Cause, in
which he argues that the Petition is untimely and that Petitioner=s claims fail on their merits.
Discussion
A.

Standard of Review
A federal court=s power to grant a writ of habeas corpus is governed by 28 U.S.C. '

2254(d), which provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. ' 2254(d).
The Supreme Court construed Section 2254(d) in Williams v. Taylor, 529 U.S. 362
(2000). With respect to the Acontrary to@ language, a majority of the Court held that a state court
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decision is contrary to clearly established federal law Aif the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of law@ or if the state court
Adecides a case differently than [the] Court has on a set of materially indistinguishable facts.@
529 U.S. at 405. Under the Aunreasonable application@ prong of ' 2254(d)(1), a writ may issue
if Athe state court identifies the correct governing legal rule from [the Supreme Court=s] cases but
unreasonably applies [the principle] to the facts of the particular state prisoner=s case.@ Id.
Thus, Aa federal habeas court making the >unreasonable application= inquiry should ask whether
the state court=s application of clearly established federal law was objectively unreasonable.@
Id. at 410. Although the Court failed to specifically define Aobjectively unreasonable,@ it
observed that Aan unreasonable application of federal law is different from an incorrect
application of federal law.@ Id. at 410.
B.

Statute of Limitations
To be considered timely under the Anti-Terrorism and Effective Death Penalty Act of

1996 (AAEDPA@), a petitioner must, in relevant part, file a habeas petition within one year after
either the conclusion of direct review in state court or the expiration of time for seeking such
review, with that one-year period tolled while any properly filed post-conviction motion or other
application for collateral relief is pending in state court. 28 U.S.C. ' 2244(d)(1)(A) and '
2244(d)(2). AFor purposes of ' 2244(d)(2), >an application is >properly filed= when its delivery
and acceptance are in compliance with the applicable laws and rules governing filings.=@ Marx
v. Gammon, 234 F.3d 356, 357 (8th Cir. 2000)(quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)).
AWhen a postconviction petition is untimely under state law, that is the end of the matter for
purposes of ' 2244(d)(2).@ Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005).
Here, Petitioner filed a direct appeal from the trial court=s judgment in August of 1995,
and then did not pursue review in a higher court after the Missouri Court of Appeals issued its
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decision on December 2, 1997. Thus, the date the underlying trial court judgment became final
for purposes of calculating the AEDPA=s limitations period was the date when petitioner=s Atime
for seeking review with the State=s highest court expired.@ Gonzalez v. Thaler, 132 S. Ct. 641,
656 (2012). Missouri Supreme Court Rule 83.02 gave Petitioner fifteen days after the filing of
the state appellate court=s opinion to seek such review, which means the trial court judgment was
final, for purposes of the AEDPA=s limitations period, fifteen days after December 2, 1997, or as
of December 17, 1997. Therefore, Petitioner had one year, or until December 17, 1998, to file a
timely habeas petition unless a properly filed post-conviction proceeding was Apending@
pursuant to 28 U.S.C. ' 2244(d)(2).
Petitioner filed two post-conviction motions (Ex. G at 5-6, 9-15), which were both
dismissed by the Circuit Court for the City of St. Louis as untimely. Ex. G at 8; 16-18.
Petitioner argued that his post-conviction motion was not untimely.

The record shows,

however, that Petitioner failed to meet the filing deadlines set forth under Missouri Rule 29.15
and as a result, the AEDPA=s limitations period under ' 2244(d)(2) was not tolled. See Pace
544 U.S. at 414. In turn, Petitioner=s federal Petition for a Writ of Habeas Corpus filed on
December 2, 2010 was, therefore, untimely by nearly twelve years.
In addition to the extension of the one-year limitation period under ' 2244(d)(2), the
one-year period under ' 2244(d)(1) may be extended through Aequitable tolling in appropriate
cases.@ Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). A petitioner seeking the benefit of
equitable tolling must show A>(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way@= so as to prevent timely filing. Id. at 2562
(quoting Pace, 544 U.S. at 418; see also Johnson v. Hobbs, 678 F.3d 607, 610 (8th Cir. 2012).
Notably, A[t]he diligence required for equitable tolling purposes is >reasonable diligence,= not

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>maximum feasible diligence.=@ Holland, 130 S. Ct. at 2565 (some internal quotation marks
omitted) (citations omitted). Additionally,
[t]he extraordinary circumstance that prevents a petitioner from timely filing his
federal [habeas] application must be external to the petitioner and not attributable
to his actions. Riddle v. Kemna, 523 F.3d 850, 857 (8th Cir. 2008) (en banc)
(abrogated on other grounds by Gonzalez, 132 S. Ct. at 653-54).
Johnson, 678 F.3d at 611.
Petitioner has not demonstrated that extraordinary circumstances external to him
prevented him from filing his habeas petition.
Finally, the AEDPA=s one-year limitations period can also be overcome, in rare
instances, by a showing of actual innocence. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931
(2013). To the extent this exception may apply here, it requires Petitioner to present a credible
claim of actual innocence based on new evidence and to Ashow that it is more likely than not that
no reasonable juror would have convicted him in the light of the new evidence@ of his
innocence. Id. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995) (internal quotation
marks omitted)). Petitioner does not claim actual innocence and therefore this excpetion does
not constitute a basis for finding the instant Petition was timely filed.
Accordingly, the Petition is untimely.
C.

Petitioner=s Claims
The Court has already found that the Petition is untimely, nonetheless, the Court will

conduct a review of Petitioner=s stated grounds for relief to show that they fail on their merits as
well.
1.

Ground One
In his first ground for relief, Petitioner argues that the City of St. Louis Circuit Court

erred in denying his motion to reopen his post-conviction proceeding. Respondent contends
that this claim is not cognizable in federal habeas relief, because it does not involve a violation of
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the Constitution, laws or treaties of the United States. In his Traverse, Petitioner concedes that
this claim is not cognizable, as it involves an error in a state post-conviction proceeding.
Accordingly, Petitioner=s first ground for relief will be denied.
2.

Ground Two
In his second ground for relief, Petitioner argues that he was improperly sentenced as a

class X offender. Respondent contends that, while Petitioner is correct that the Aclass X@
designation was removed from Section 558.019 in August 1993, Petitioner was not prejudiced
by the fact the Aclass X offender@ box was checked on the Circuit Court of the City of St. Louis’
Sentence and Judgment form.
Petitioner committed his crime on April 30, 1994. Under August 1993 amendments to
Mo.Rev.Stat. ' 558.019, the Aclass X@ designation was removed. Under the former version, a
Aclass X@ offender was required to serve eighty percent of his prison term prior to eligibility for
parole or other early release. Mo.Rev.Stat. ' 558.019 (Supp. 1988). A Aclass X@ offender was
defined as a person who has pleaded guilty or was found guilty of three separate felonies
committed at different times. Mo.Rev.Stat. ' 558.019.4(3) (Supp. 1988).
The August 1993 amendments to Section 558.019 substituted Ahas three or more prior
felony convictions committed at different times@ for Ais a class X offender.@ Mo.Rev.Stat. '
558.019.2 (Cum. Supp. 1993). The statute still required that a defendant who has committed
three or more prior felony convictions at different times serve eighty percent of his prison term
prior to parole consideration. See id.
In this case, Petitioner does not challenge the Circuit Court=s finding that he committed
three prior felonies at different times. Thus, he was subject to Section 558.019.2, requiring him
to serve eighty percent of his prison term. The fact that the term Aclass X offender@ was
removed from the statute did not affect Petitioner=s sentence. Thus, the Petitioner=s sentence
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was authorized by statute and the Petitioner has failed to demonstrate a violation of his
constitutional rights.
Accordingly, the Petitioner=s second ground for relief will be denied.
D.

Certificate of Appealability
To grant a certificate of appealability, a federal habeas court must find a substantial

showing of the denial of a federal constitutional right. See 28 U.S.C. ' 2253(c)(2); Hunter v.
Bowersox, 172 F.3d 1016, 1020 (8th Cir. 1999). A substantial showing is established if the
issues are debatable among reasonable jurists, a court could resolve the issues differently, or the
issues deserve further proceedings. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). In
this case, the Petitioner has failed to make a substantial showing of the denial of a constitutional
right. The undersigned is not persuaded that the issues raised in his Petition are debatable among
reasonable jurists, that a court could resolve the issues differently, or that the issues deserve
further proceedings.
Accordingly, no Certificate of Appealability shall be issued.

ORDER
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for
a Writ of Habeas Corpus under 28 U.S.C. ' 2254 be denied and be dismissed with prejudice by
separate judgment entered this date.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be
denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal.

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Dated this 11th day of June, 2014.

ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

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