Flenoid v. State of Missouri
Filing
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MEMORANDUM AND ORDER..DENYING re: 2 PRO SE MOTION Stay and Abate Federal Habeas Corpus Proceeding filed by Petitioner Larry Flenoid,GRANTING 3 PRO SE MOTION to File Excessive Memorandum filed by Petitioner Larry Flenoid. Signed by Magistrate Judge Lewis M. Blanton on 4/22/11. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LARRY FLENOID,
Petitioner,
v.
CHRIS KOSTER, et al.,
Respondents.
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No. 4:11CV330 LMB
MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s motion for a stay and abeyance
pursuant to Rhines v. Weber, 544 U.S. 269 (2005). The motion will be denied.
Petitioner was convicted by a jury of first-degree burglary, first-degree murder,
armed criminal action, and assault in the first degree. After his conviction was affirmed
on appeal, petitioner filed a pro se Rule 29.15 motion that included a multitude of
claims. Counsel was appointed for petitioner, and counsel filed an amended motion
that contained five claims. The amended motion wholly superseded the pro se motion.
See Norville v. State, 83 S.W.3d 112, 114 (Mo. Ct. App. 2002). The circuit court
denied the motion, and the Missouri Court of Appeals affirmed. On appeal, petitioner
argued unsuccessfully that his post-conviction counsel “abandoned” him by not
including each of the claims raised in the pro se Rule 29.15 motion.
Petitioner’s federal habeas petition contains all of the claims petitioner raised in
his pro se Rule 29.15 motion. Petitioner says that he has filed a Rule 91 habeas
petition in the state court in an attempt to exhaust those claims not raised in the
amended Rule 29.15 motion. Petitioner moves this Court for a stay and abeyance while
he seeks to litigate his unexhausted claims in the state courts.
“Because granting a stay effectively excuses a petitioner’s failure to present his
claims first to the state courts, stay and abeyance is only appropriate when the district
court determines there was good cause for the petitioner’s failure to exhaust his claims
first in state court.” Rhines, 544 U.S. at 277. Entitlement to a stay requires not only
consideration of whether petitioner had good cause for his failure to exhaust, but also
whether his unexhausted claims are “plainly meritless,” whether the claims are
potentially meritorious, and whether the petitioner engaged in intentionally dilatory
litigation tactics. Id. at 277-78.
Prior to considering the merits of a state petitioner’s habeas claims, a federal
court must determine whether the federal constitutional dimensions of the petitioner’s
claims were presented to the state court. Smittie v. Lockhart, 843 F.2d 295, 296 (8th
Cir.1988). If not, the petitioner may still meet the exhaustion requirement if there are
no currently available non-futile state remedies by which he could present his claims
to the state court. Smittie, 843 F.2d at 296. When the petitioner's claims are deemed
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exhausted because he has no available state court remedy, the federal court still cannot
reach the merits of the claims unless the petitioner demonstrates adequate cause to
excuse his state court default and actual prejudice resulting from the alleged
unconstitutional error, or that a fundamental miscarriage of justice would occur if the
Court were not to address the claims. Coleman v. Thompson, 501 U.S. 722 (1991);
Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Keithley v. Hopkins, 43 F.3d 1216, 1217
(8th Cir.1995); Stokes v. Armontrout, 893 F.2d 152, 155 (8th Cir.1989). Before
reviewing any claims raised in a habeas petition, the Court may require that every
ground advanced by the petitioner survive this exhaustion analysis. Rhines, 544 U.S.
at 269 (2005).
In this case, petitioner does not have any non-futile state remedies by which he
can present his unexhausted claims to the state courts. Rule 29.15 is the “exclusive
procedure by which [a convicted] person may seek relief in the sentencing court” for
claims that his conviction violated the state or federal constitutions. Mo. S. Ct. R.
29.15. And any such motion must be filed no later than 90 days from the issuance of
the mandate by the appellate court on direct appeal. Id. As a result, all of petitioner’s
claims are exhausted, and the petition is not subject to stay and abeyance under Rhines.
Accordingly,
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IT IS HEREBY ORDERED that petitioner’s motion for stay and abeyance
[doc. #2] is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for leave to file
excessive memorandum [doc. #3] is GRANTED.
Dated this 22nd
day of April, 2011.
LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE
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