Howard v. Hurley

Filing 3

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that no order to show cause shall issue at this time as to respondent, because the instant petition appears to be time-barred under 28 U.S.C. § 2244(d). IT IS FURTHER ORDERED that petition er shall show cause within thirty (30) days of the date of this Order as to why the Court should not dismiss the instant application for a writ of habeas corpus as time-barred. Petitioner's failure to file a show cause response shall result in the denial of the instant habeas corpus petition and the dismissal of this action. Show Cause Response due by 9/12/2012. Signed by District Judge Audrey G. Fleissig on 8/13/2012. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DALE HOWARD,
Petitioner,
v.
JAMES HURLEY,
Respondent.

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No. 4:12CV1293 TCM

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s application for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Having carefully reviewed the record, the Court
will order petitioner to show cause as to why it should not dismiss the instant petition
as time-barred under 28 U.S.C. § 2244(d)(1).
The Petition
On July 11, 2006, a jury found petitioner guilty of trafficking drugs in the second
degree. Petitioner was sentenced to fifteen (15) years imprisonment. See State v.
Howard, Case No. 05G9-CR01178-01. His conviction and sentence were affirmed on
direct appeal on September 25, 2007. State v. Howard, 233 S.W.3d 764 (Mo. Ct. App.
2007).
Petitioner filed a motion for post-conviction relief on January 14, 2008. The trial
court denied his motion on August 19, 2008. Petitioner filed a timely appeal of the

denial, and the Missouri Court of Appeals reversed and remanded the matter to the trial
court to enter findings of fact and conclusions of law on January 26, 2010. Howard v.
State, 302 S.W.3d 739 (Mo. Ct. App. 2010). Judgment on petitioner’s motion for postconviction relief was again entered by the trial court on February 24, 2010. See
Howard v. State, Case No. 08C-CC00015-01. Petitioner again appealed the denial of
his motion, and the Court of Appeals upheld the trial court’s decision on February 15,
2011. See Howard v. State, 331 S.W.3d 347 (Mo. Ct. App. 2011). The mandate was
entered on March 10, 2011. Petitioner appears to have filed a Rule 91 application for
writ of habeas corpus in the Missouri Supreme Court on March 13, 2012, which was
denied and dismissed on May 29, 2012.
Discussion
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts
provides that a district court shall summarily dismiss a § 2254 petition if it plainly
appears that the petitioner is not entitled to relief.
Under 28 U.S.C. § 2244(d):
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
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(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
The United States Supreme Court, in the recent case of Gonzalez v. Thaler, 132
S.Ct. 641 (2012), held that a judgment becomes final under § 2244)(d)(1)(A) when the
time for seeking review in the state’s highest court expires. For Missouri prisoners,
like petitioner, who do not file a motion to transfer to the Missouri Supreme Court, the
limitations period begins to run fifteen (15) days after the Missouri Court of Appeals
affirms a conviction on direct appeal. See Mo.S.Ct.R. 83.02. Petitioner’s one-year
period of limitations, therefore, began to run on approximately September 25, 2007.
The time during which a properly filed post-conviction relief motion is pending
tolls the statute of limitations. 28 U.S.C. § 2244(d)(2).1 Thus, the limitations period

1

However, the period, of more than three and a half months in this case,
between the completion of direct review of the state court judgment and the
application for post-conviction relief is counted towards the one-year limitation
period. See, e.g., Maghee v. Ault, 410 F.3d 473, 475 (8th Cir. 2005); Curtiss v.
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in this case was subsequently tolled from January 14, 2008, the date petitioner filed his
motion for post-conviction relief, until approximately March 10, 2011, the date
petitioner received the mandate of the Missouri Court of Appeals. Payne v. Kemna,
441 F.3d 570, 572 (8th Cir. 2006) (post-conviction relief proceedings final on issuance
of mandate).
Petitioner filed the instant petition on July 16, 2012. Although petitioner’s
limitations period would again be tolled during the two and a half months petitioner’s
Mo.S.Ct.R. 91 petition for writ was pending, see Polson v. Bowersox, 595 F.3d 873,
875 (8th Cir. 2010), his § 2254 writ would still be barred by the statute of limitations
by more than one-hundred-sixty-three (163) days, or more than five months.2 As a
result, the Court will order petitioner to show cause, in writing and no later than thirty
days from the date of this Order, why this action should not be dismissed as timebarred.
Mount Pleasant Corr. Facility, 338 F.3d 851, 854 (8th Cir. 2003).
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One-hundred-eleven (111) days elapsed between September 25, 2007
(fifteen days after his conviction was affirmed on direct appeal) and January 14,
2008 (the date petitioner filed his post-conviction motion in the trial court). Threehundred and sixty-nine (369) days elapsed between March 10, 2011 (the date the
mandate was issued from the appellate court) and March 13, 2012 (the date
petitioner filed his Rule 91 application for habeas corpus). Forty-eight (48) days
elapsed between May 29, 2012 (the date petitioner’s application for habeas relief
was denied) and July 16, 2012 (the date petitioner filed his § 2254 application for
writ).
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Accordingly,
IT IS HEREBY ORDERED that no order to show cause shall issue at this time
as to respondent, because the instant petition appears to be time-barred under 28
U.S.C. § 2244(d).
IT IS FURTHER ORDERED that petitioner shall show cause within thirty
(30) days of the date of this Order as to why the Court should not dismiss the instant
application for a writ of habeas corpus as time-barred. Petitioner's failure to file a show
cause response shall result in the denial of the instant habeas corpus petition and the
dismissal of this action.
Dated this 13th day of August, 2012.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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