Devoto v. Minor

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner shall show cause, no later than thirty (30) days from the date of this Order, why this action should not be dismissed as untimely. IT IS FURTHER ORDERED that if petitioner fails to comply with this Order, this action may be dismissed. Show Cause Response due by 4/29/2013. Signed by Magistrate Judge Shirley P. Mensah on 3/27/13. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTOPHER DEVOTO,
Petitioner,
v.
DEAN MINOR,
Respondent.

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No. 4:13CV247 SPM

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The petition appears to be barred by § 2244’s one-year
limitations period, and the Court will order petitioner to show cause why the petition
should not be dismissed.
Background
On June 10, 2008, petitioner was sentenced to two concurrent ten-year
sentences for Missouri’s long-term drug treatment program. Pet. Exh. A-1 at 1
(Findings and Fact and Conclusions of Law of the Circuit Court of Jefferson County,
denying petitioner’s Rule 24.035 motion). Movant was delivered into the custody of
the Missouri Department of Corrections on June 12, 2008. Id. at A-4. On September
2, 2009, the court gave petitioner probation and suspended the execution of the
sentences. Id. at A-1 at 1. On November 30, 2010, petitioner confessed to a violation

of probation, and the court revoked petitioner’s probation and executed the sentences.
Id.
Petitioner filed his motion for postconviction relief under Rule 24.035 on
December 28, 2010. Id. The state immediately filed a motion to dismiss the motion
as untimely. Id. The state argued Rule 24.035 requires that, in cases where no appeal
is taken, the motion “be filed within 180 days of the date the person is delivered to
the custody of the department of corrections.” Mo. Rule 24.035(b); Pet. Exh. A-4.
The court agreed, finding that “the movant filed his post conviction relief motion well
after the 180 days from his delivery to the custody of the Missouri Department of
Corrections.” Pet. Exh. A-1 at 1. The court further found that petitioner’s “failure
to file a timely post conviction relief motion pursuant to Supreme Court Rule 24.035
constitutes a complete waiver of any right to proceed under Supreme Court Rule
24.035 and also any claim that could be raised under Supreme Court Rule 24.035.
Id. at 1-2. The court accordingly dismissed petitioner’s motion as untimely. Id. at 2.
On July 25, 2001, petitioner filed a Rule 91 habeas petition in the Circuit Court
for the County of St. Louis. Devoto v. Sacshse, 11SL-CC03251 (21st Jud. Cir.). The
court dismissed the petition as without merit on December 28, 2011.
Petitioner filed the instant motion under 28 U.S.C. § 2254 on February 1, 2013,
which is the date he placed it in the prison mail system.
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Standard
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;
...
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.
A petition denied by a state court as untimely is not “properly filed” for
purposes of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005).
Discussion
Petitioner did not appeal from his sentence. In Missouri, the time for filing a
direct appeal expires ten days after the judgment is entered. Mo. R. Crim. P.
30.01(d). As a result, the limitations period began to run on June 20, 2008.

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Because the Jefferson County Circuit Court denied petitioner’s Rule 24.035
motion as untimely, the motion did not toll the limitations period during its pendency.
The limitations period, therefore, expired on June 20, 2009, well before petitioner
filed the instant petition for writ of habeas corpus.
The Court will allow petitioner to show cause why his petition should not be
dismissed as untimely. Under the doctrine of equitable tolling, the AEDPA’s
statutory limitations period may be tolled if a petitioner can show that (1) he has been
diligently pursuing his rights and (2) an extraordinary circumstance stood in his way.
Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Equitable tolling is a flexible
procedure that involves both recognition of the role of precedent and an “awareness
of the fact that specific circumstances, often hard to predict in advance, could warrant
special treatment in an appropriate case.” Id. at 2563. Petitioner shall have thirty
days from the date of this Order to file a response brief. If petitioner fails to timely
file a response, the Court will dismiss this action without prejudice.
Accordingly,
IT IS HEREBY ORDERED that petitioner shall show cause, no later than
thirty (30) days from the date of this Order, why this action should not be dismissed
as untimely.

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IT IS FURTHER ORDERED that if petitioner fails to comply with this
Order, this action may be dismissed.
Dated this 27th

day of March, 2013.

/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

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