Gibbs v. Steele

Filing 6

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioners motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that petitioners application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is D ENIED AND 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. A separate Order of Dismissal shall accompany this Memorandum and Order. 2 Signed by District Judge Henry E. Autrey on 1/8/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT GIBBS,
Petitioner,
v.
TROY STEELE,
Respondent.

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No. 4:12CV2083 HEA

OPINION, 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 his arguments are without merit and that the instant action is timebarred under 28 U.S.C. § 2244.
The Petition
On April 9, 1986, petitioner plead guilty to two counts of murder in the first
degree and was sentenced to life without the possibility of parole. See State v.
Gibbs, Case No. 21CCR-543431. Petitioner failed to file either a direct or postconviction appeal of his conviction and sentence.

1

On December 5, 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 time-barred.

In 2010, petitioner filed a Rule 91 application for habeas corpus in the
Circuit Court of Mississippi County, Missouri, which was denied on November
18, 2010. He appealed the denial of his Rule 91 petition to the Missouri Court of
Appeals and then later to the Missouri Supreme Court, but the denial of his state
habeas petition was affirmed on each level of appeal.
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) a one-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 runs from the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such
review. In Missouri, the time for filing a direct appeal expires ten days after the
judgment is entered, in this case, more than twenty-five (25) years ago. Mo. R.
Crim. P. 30.01(d) and Mo. R. Civ.P. 81.04.
Petitioner argues that his untimely filing should be exempted from the
statute of limitations because he is “not guilty of the elements of First Degree
Murder,” the crime for which he plead guilty. Specifically, petitioner asserts that
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the “State concealed crucial evidence at the time of my plea hearing and
sentencing that would have revealed my innocence of First Degree Murder. . .
[and] [h]ad my attorney, the State or Court informed me I did not meet the
elements of First Degree Murder, I would have appealed my conviction.”
Although a showing of actual innocence may excuse an untimely filing,
petitioner’s argument falls far short of an “actual innocence” claim.2 Rather,
petitioner’s argument is more akin to an ineffective assistance of counsel claim,
which rarely can form the basis for equitable tolling. See Beery v. Ault, 312 F.3d
948, 951 (8th Cir.2002) ( "[i]neffective assistance of counsel generally does not
warrant equitable tolling"); Sellers v. Burt, 168 Fed.Appx. 132, 133 (8th Cir.
2006) (unpublished opinion) (rejecting petitioner's argument that the statute of
limitations should be tolled "because his state post-conviction attorney failed to

2

Additionally, in order to show an actual innocence claim, the petitioner has
“to show some action or inaction on the part of respondent that prevented him
from discovering the relevant facts in a timely fashion, or at the very least, that a
reasonably diligent petitioner could not have discovered these facts in time to file
a petition within the period of limitations.” Flanders v. Graves, 299 F.3d 974, 978
(8th Cir. 2002). Petitioner has failed to offer any explanation of how his allegedly
false guilty plea, which was apparently known to him at the time he entered the
plea, prevented him from filing a petition for writ of habeas corpus in a timely
fashion. Rather, petitioner makes the convoluted argument that he was actually
guilty of Second Degree Murder, rather than First Degree Murder, as testified to
by the Prosecutor in a co-defendant’s plea hearing. Petitioner’s assertions are
unavailing.
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communicate with him and did not send his case file"); Greene v. Washington, 14
Fed.Appx. 736, 737 (8th Cir.2001) (rejecting equitable tolling argument based on
alleged mistake by post-conviction attorney) (unpublished opinion); see also
Preston v. Iowa, 221 F.3d 1343 (8th Cir. 2000) (refusing to apply equitable tolling
in the case of an unrepresented prisoner alleging a lack of legal knowledge or legal
resources).
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed
in forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that petitioner’s application for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED AND 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.
A separate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 8th day of January, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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