Hamilton v. Denney

Filing 6

OPINION, MEMORANDUM AND ORDER re: 2 ORDERED that petitioner's motion to proceed in forma pauperis [Doc. #2] is GRANTED. FURTHER ORDERED that petitioner shall show cause, in writing, within thirty (30) days of the date of this Memorandum and O rder, why his application for writ of habeas corpus should not be dismissed as time-barred. Petitioner's failure to do so will result in a dismissal of this action. ( Show Cause Response due by 1/19/2013.). Signed by District Judge Henry E. Autrey on 12/20/12. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES H. HAMILTON,
Petitioner,
v.
LARRY DENNEY,
Respondent.

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No. 4:12CV1721 TCM

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on James Hamilton’s application for writ of
habeas corpus, brought pursuant to 28 U.S.C. § 2254. Also before the Court is
petitioner’s motion for leave to proceed in forma pauperis. Upon consideration of
the financial information provided with the application, the Court finds that
petitioner is financially unable to pay any portion of the filing fee. As such,
petitioner's motion to proceed in forma pauperis will be granted. See 28 U.S.C. §
1915. Having reviewed the record in this action, the Court finds that the petition is
time-barred by the one-year statute of limitations of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A).
However, the Court will allow petitioner thirty (30) days to show cause as to why
the Court should not dismiss the instant petition as time-barred under 28 U.S.C. §
2244(d)(1).

Background
On July 9, 1997, petitioner was found guilty of felony possession of a
controlled substance (Count I) and misdemeanor possession of less than 35 grams
of marijuana (Count II). See State v. Hamilton, No. 22961-03006-01 (TwentySecond Judicial District, St. Louis City). On September 4, 1997, petitioner was
sentenced to a four-year term of imprisonment on Count I, in addition to a
one-year term of imprisonment on Count II. Petitioner was given a Suspended
Execution of Sentence (“SES”) and placed on Probation for two years, given
shock incarceration, which began on September 4, 1997, and two years Supervised
Release, which was completed on September 4, 1999. Petitioner did not appeal his
sentence, and he failed to file a timely motion pursuant to Mo. R. Crim. P. 29.15.
Petitioner, currently incarcerated at Crossroads Correctional Center, filed the
instant petition on September 24, 2012.
Discussion
AEDPA provides for a one-year statute of limitations for the filing of a
federal habeas petition by a state prisoner, with the limitations period beginning
on the latest of four dates, including the date relevant here: the date on which the
state conviction which the petitioner challenges “became final by the conclusion
of direct review or the expiration of the time for seeking such review.” 28 U.S.C.
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§ 2244 (d)(1)(A).1 See Missouri Supreme Court Rule 44.01(a) on time
computation.
In Missouri, a judgment in a criminal case becomes final when sentence is
entered. State v. Arnold, 230 S.W.3d 353, 354 (Mo. Ct. App. 2007).2 A party has
ten days after the final judgment to file an appeal. Id.; Mo. Sup. Ct. R. 30.01(d).
Here, because petitioner did not file a direct appeal, the one-year period for filing a
federal habeas petition began to run on or about September 14, 1997, which was
ten days after his sentence was entered.
In Holland v. Florida, 130 S. Ct. 2549 (2010), the Supreme Court held that
equitable tolling of the AEDPA statute of limitations is available to a petitioner
who shows “‘(1) that he has been pursuing his rights diligently, and (2) that some

1

The other three dates, none of which apply here, are:
(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.
2

Under Missouri law a suspended execution of sentence is an entry of judgment,
because the sentence has been assessed and only the act of executing the sentence has
been suspended. E.g., State v. Nelson, 9 S .W.3d 687, 688 (Mo. Ct. App. 1999).
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extraordinary circumstance stood in his way’ and prevented timely filing.” Id. at
2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). In determining
whether equitable tolling is warranted in a particular case, courts should “exercise
judgment in light of prior precedent, but with awareness of the fact that specific
circumstances . . .could warrant special treatment in an appropriate case.” Id.at
2563.
Here, petitioner has not asked for equitable tolling, nor does the Court
discern a basis for application of the doctrine. See, e.g., Rues v. Denney, 643 F.3d
618, 622 (8th Cir. 2011) (holding that counsel’s miscalculation of habeas filing
deadline is a “garden variety claim” of neglect and does not warrant equitable
tolling); Heath v. Ault, 334 F. App’x 34, 34 (8th Cir. 2009) (rejecting pro se
petitioner’s argument that he was entitled to equitable tolling because he was
unaware of the applicable deadlines); cf. Shelton v. Purkett, 563 F.3d 404, 407
(8th Cir. 2009) (holding that a change in an applicable circuit precedent would
constitute an “extraordinary circumstance” that would serve to equitably toll
AEDPA’s statute of limitations, if a petitioner had otherwise been diligently
pursuing his rights).

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In sum, petitioner’s application for writ of habeas corpus appears to be
untimely, and petitioner will be required to show cause why his petition should not
be dismissed as time-barred pursuant to § 2244(d).3
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that petitioner shall show cause, in writing,
within thirty (30) days of the date of this Memorandum and Order, why his
application for writ of habeas corpus should not be dismissed as time-barred.
Petitioner’s failure to do so will result in a dismissal of this action.
Dated this 20th day of December, 2012.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

3

Petitioner has sent the Court two letters asserting that he is currently in “imminent
danger,” and seeking an intervention by this Court into the conditions of his current
incarceration. In his correspondence, petitioner references a civil rights action he
currently has on file in the Western District of Missouri. Petitioner is currently
incarcerated at Crossroads Correctional Center which is located within the jurisdiction of
the United States District Court for the Western District of Missouri. His claims
regarding his conditions of confinement are not cognizable in the habeas case he currently
has before this Court. Rather, he needs to bring those claims to the Western District
within the context of a civil rights action brought pursuant to 42 U.S.C. § 1983. Thus, the
Court cannot intervene on his behalf on claims relating to his current incarceration.
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