Howard v. Hurley

Filing 5

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as time-barred. Rule 4 of the Rules Governing § 2254 Proceedings. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. 28 U.S.C. § 2253. Signed by District Judge Audrey G. Fleissig on 9/11/2012. (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 upon review of petitioner’s response to the
Order to Show Cause.1 Having carefully reviewed petitioner’s response, the Court
concludes that the instant action is time-barred and subject to dismissal.
On July 11, 2006, a jury found petitioner guilty of trafficking drugs in the
second degree. Petitioner was sentenced to fifteen years’ imprisonment. His
conviction and sentence were affirmed on direct appeal on September 25, 2007.
In the Court’s prior Memorandum and Order, the Court set forth, in great
detail, the procedural history of petitioner’s direct and collateral review of his
conviction. Because petitioner agrees with the dates set forth in the prior

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On August 13, 2012, the Court ordered petitioner to show cause as to why the
Court should not dismiss the instant application for writ of habeas corpus as timebarred.

Memorandum and Order, the Court will mention the timeline of review only briefly
herein.
Petitioner filed a motion for post-conviction relief of his conviction 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. Judgment on petitioner’s motion for post-conviction relief was again
entered by the trial court on February 24, 2010. Petitioner again appealed the denial
of his motion, and the Court of Appeals upheld the trial court’s decision on February
15, 2011. The mandate was entered on March 10, 2011. Petitioner states in his
response brief that he filed a state habeas petition in Pike County Circuit Court on
June 24, 2011. He states that his petition was dismissed by the court on October 11,
2011. Petitioner also filed a state habeas petition in the Missouri Supreme Court on
March 13, 2012, which was denied and dismissed on May 29, 2012.
Discussion
Pursuant to 28 U.S.C. 2244(d), a one year limitations period applies to an
application for writ of habeas corpus. Petitioner’s limitations period began to run on
the date his judgment became final, or on approximately October 10, 2007, fifteen
days after the Missouri Court of Appeals affirmed his conviction on direct appeal.
See Gonzalez v. Thaler, 132 S.Ct. 641 (2012); Mo.S.Ct.R. 83.02.
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However, the period of approximately three months in this case, between the
completion of direct review of the state court judgment and the application for postconviction relief is counted toward the one-year limitation period. See, e.g., Maghee
v. Ault, 410 F.3d 473, 475 (8th Cir. 2005); Curtiss v. Mount Pleasant Corr. Facility,
338 F.3d 851, 854 (8th Cir. 2003). Ninety-six (96) days elapsed between October 10,
2007 and January 14, 2008.
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). Thus, the limitations period 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 from the Missouri Court of Appeals. Payne v.
Kemna, 441 F.3d 570, 572 (8th Cir. 2006) (post-conviction relief proceedings final on
issuance of the mandate).
Petitioner’s limitations period was again tolled during the time his Rule 91
habeas petitions were pending. See Polson v. Bowersox, 595 F.3d 873, 875 (8th Cir.
2010). However, between March 10, 2011 and June 24, 2011, the date upon which
petitioner claims his first habeas petition was filed, one-hundred and six (106) days
passed. Petitioner claims the Rule 91 petition was denied on October 11, 2011 and
that it was not until March 13, 2012 that he filed a second Rule 91 petition. Between
the denial of his first petition and the filing of the second petition, one-hundred fifty-3-

four (154) days passed. The second petition was denied on May 29, 2012, and
petitioner did not file the instant application for writ of habeas corpus until July 16,
2012, again allowing forty-eight (48) days to pass. Thus, altogether, petitioner
allowed four-hundred and four (404) days to pass between the date on which his
judgment became final and the time he filed the instant application for habeas relief.
Because his petition was filed approximately forty (40) days late, his application is
time-barred and is subject to summary dismissal, despite his arguments to the
contrary.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s application for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is DISMISSED as time-barred. Rule 4 of the
Rules Governing § 2254 Proceedings.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability. 28 U.S.C. § 2253.
Dated this 11th day of September, 2012.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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