Jones v. Sachse

Filing 35

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Amended Petition for habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. No. 28] is DENIED and DISMISSED. IT IS FURTHER ORDERED that a Certificate of Appealability will not issue. A separate judgment in accordance with this Opinion, Memorandum, and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 4/1/15. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM JONES,
Petitioner,
v.
MICHAEL BOWERSOX
Respondent.

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No. 4:12CV343 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s Amended Petition for Writ of
Habeas Corpus, filed pursuant to 28 U.S.C. § 2254 [Doc. No. 28]. Respondent has
filed his Response to the Court’s Order to Show Cause. For the reasons set forth
below, the Petition will be denied and dismissed.
Background
Petitioner was charged with assault of a law enforcement officer in the
second degree for causing injury to Officer Michael Weldon, and assault of a law
enforcement officer in the third degree for causing physical contact with Officer
Michael Hammond. On September 9, 2009, police officers were approached by
two women who informed them about a nearby domestic assault incident. These
officers requested that additional officers respond to the area to address the report
of these two women so that the original officers could complete the investigation
of the case that they had been dispatched to investigate. When Officer Michael

Weldon and Officer Michael Hammond arrived, they went with the two women to
investigate the domestic assault. As they were investigating the domestic assault
at a residence, Petitioner entered the residence and seemed agitated. The officers
asked Petitioner to step outside so that they could talk with him. While outside on
the porch, Petitioner approached the officers in an aggressive and threatening
manner. One of the officers grabbed Petitioner’s arm and told him to place his
hands behind his back so that he could be placed in handcuffs. Petitioner resisted
the effort to handcuff him, and during the struggle, knocked Officer Weldon and
himself over a railing and off the porch. After landing on the ground, Petitioner
continued to struggle with Officer Weldon. Officer Hammond came down from the
porch to assist Officer Weldon in securing petitioner. During the struggle, Officer
Weldon received some cuts on his arm.
While in custody, Petitioner wrote four letters to the trial court. In the first
letter, Petitioner stated that he was innocent, and that he was tazed during the
encounter. In the second letter, Petitioner requested a plea offer.
Petitioner sent the third letter shortly before the trial court ordered a mental
exam. In that letter, Petitioner alleged that the staff at the jail was trying to kill
him, and that the jail was refusing to release him even though his family had
posted his bond. Petitioner also asked for a 180-day disposition, and also indicated
a willingness to take a two-year sentence.

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In June 2010, Petitioner wrote a letter objecting to his anticipated return
from the Department of Mental Health to the local jail and asking that he be sent to
a different jail. In that letter, Petitioner also asked for the case to be dismissed
based on not having his defense attorney present at the preliminary hearing and the
report being written by an officer who was not present for the incident.
In August 2010, Petitioner entered a plea of guilty to amended charges. The
State recommended a five year sentence, but Petitioner entered an open plea. The
trial court sentenced Petitioner to six years and placed him on probation.
Petitioner violated the terms of his probation, and the trial court revoked his
probation.
After the trial court had revoked Petitioner’s probation, he wrote a letter
asking to be released back on probation, but the trial court took no action on that
request. In that letter, Petitioner did not request to set aside or vacate the plea.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §
2254 (“AEDPA”) applies to all petitions for habeas relief filed by state prisoners
after the statute’s effective date of April 24, 1996. When reviewing a claim that has
been decided on the merits by a state court, AEDPA limits the scope of judicial
review in a habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a state court shall not be granted

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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).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, held that:
Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
529 U.S. 362, 412–13 (2000). Furthermore, the Williams Court held that “a federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” 529 U.S. at 409.
Pursuant to AEDPA, there is a one-year statute of limitations when a state
prisoner petitions for federal habeas corpus relief. King v. Hobbs, 666 F.3d 1132,
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1134–35 (8th Cir. 2012) (citing 28 U.S.C. § 2244(d)(1)). The statute of limitations
begins to run on “the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A).
The date on which judgment becomes final, and the statute of limitations
begins to run, differs based on the level of review sought by the petitioner. If the
petitioner sought review in the “state court of last resort,” then the Supreme Court
has jurisdiction to review the appeal and judgment will be considered final 90 days
after the conclusion of the direct criminal appeal in the state system. Id. (citing
Gonzalez v. Thayer, 132 S. Ct. 641, 656 (2012)); see also Sup. Ct. R. 13.1; 28
U.S.C. § 1257(a). On the other hand, should a state prisoner opt not to seek review
in the “state court of last resort,” then “the judgment becomes final on the date that
the time for seeking such review expires.” Id. (quoting Gonzalez, 132 S. Ct. at
646). Once judgment is final, the statute of limitations begins to run. See 28 U.S.C.
§ 2244(d)(1)(A).
Statute of Limitations
The statute of limitations on a habeas petition is one year. 28 U.S.C.
§2244(d)(1). It begins to run at the conclusion of direct review. 28 U.S.C.
§2244(d)(1)(A). The time for filing ends a year later. If a state post-conviction
action or other collateral review is pending, the running of the time to file is tolled.
28 U.S.C. §2244(d)(2). Failure to file within one year requires dismissal of the
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petition for writ of habeas corpus. See Cross-Bey v. Gammon, 322 F.3d 1012 (8th
Cir. 2003).
Under Missouri law, a notice of appeal must be filed within ten days of
sentencing. Missouri Supreme Court Rules 30.01, 81.04. The trial court sentenced
Petitioner on August 24, 2010. As such, any notice of appeal would have been due
on September 3, 2010. Petitioner did not file a notice of appeal or otherwise seek
direct review of his conviction. Because Petitioner did not timely file a notice of
appeal, direct review concluded on September 3, 2010, making his habeas petition
due on September 3, 2011, unless the time was tolled by the filing of a motion for
collateral review. The record from the underlying case does not reflect the filing of
any motion to set aside the plea during that time period, and, as such, Petitioner is
not entitled to any tolling. Since September 3, 2011 was a Saturday, the habeas
petition was actually due on September 6, 2011. The records of this Court reflect
that the original petition was sent to the U.S. District Court for the Western District
of Missouri where it was filed on December 16, 2011. Petitioner’s original
petition, therefore, was untimely. Petitioner has presented nothing to establish that
the limitations period should be tolled.
Under 28 U.S.C. § 2244(d)(2), the one-year limitation period for filing a
habeas petition is tolled while “a properly filed application for State postconviction or other collateral review ... is pending.” Williams v. Bruton, 299 F.3d
981, 982 (8th Cir.2002). The pendency of postconviction review includes the time
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between the trial court's denial of post-conviction relief and the filing of an appeal
from the denial, Beery v. Ault, 312 F.3d 948, 950 (8th Cir.2002); and the time
during the appeal process up through and including the date upon which the court
of appeals issues its mandate. Payne v. Kemna, 441 F.3d 570, 572 (8th Cir.2006).
It is not pending, “between the date direct review concludes and the date an
application for state post-conviction relief is filed.” Painter v. Iowa, 247 F.3d
1255, 1256 (8th Cir.2001). However, an inmate is not entitled to tolling for postconviction actions filed after the limitations period has expired. Cross Bey v.
Gammon, 322 F.3d 1012, 1014 (8th Cir.2003).
Petitioner has presented nothing to demonstrate to the Court that equitable
tolling is required in this matter. As such, Petitioner’s Petition is time barred.
Certificate of Appealability
If a federal court denies a habeas application on procedural grounds without
reaching the underlying constitutional claims, the court is not required to issue a
certificate of appealability unless the petitioner demonstrates that jurists of reason
would find it debatable: (1) whether the application states a valid claim of the
denial of a constitutional right; and (2) whether the court was correct in its
procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. §
2253(c). Based on the record, and the law as discussed above, Petitioner has failed
to demonstrate that jurists of reason would find it debatable that Petitioner has not

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made a substantial showing of the denial of a constitutional right. Thus, the Court
will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that the Amended Petition for habeas corpus
pursuant to 28 U.S.C. § 2254 [Doc. No. 28] is DENIED and DISMISSED.
IT IS FURTHER ORDERED that a Certificate of Appealability will not
issue.
A separate judgment in accordance with this Opinion, Memorandum, and
Order is entered this same date.
Dated this 31st day of March, 2015.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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