Phillips v. Bowersox

Filing 15

MEMORANDUM AND ORDER - For the reasons discussed above, the Court concludes that the petition for a writ of habeas corpus was untimely filed under § 2244(d) and must be dismissed. Additionally, because petitioner has failed to make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Signed by District Judge Carol E. Jackson on 6/13/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL L. PHILLIPS,

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Petitioner,
vs.
MICHAEL S. BOWERSOX,
Respondent.

Case No. 4:13-CV-355 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Michael L. Phillips, for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a response in
opposition, and the issues are fully briefed.
I.

Procedural Background

Petitioner, Michael L. Phillips, is currently incarcerated at South Central
Correctional Center in Licking, Missouri, pursuant to the sentence and judgment of the
Circuit Court of the City of St. Louis. On July 16, 2008, following a jury trial, petitioner
was found guilty of first-degree robbery, first-degree burglary, kidnaping, and three
counts of armed criminal action. Resp. Ex. 1. On September 26, 2008, the trial court
sentenced petitioner as a prior and persistent offender to concurrent sentences of
twenty-two years of imprisonment for the robbery, fifteen years of imprisonment for
the burglary, fifteen years for the kidnaping, and ten years for each of the three armed
criminal action convictions. Id.
Petitioner filed a notice of appeal on October 1, 2008. Id. The Missouri Court
of Appeals affirmed the judgment of the trial court on June 16, 2009, and issued the
mandate on July 9, 2009. Resp. Ex. 4-5; State v. Phillips, 285 S.W.3d 426 (Mo. Ct.

App. 2009).

Petitioner filed a motion for post-conviction relief in state court on

September 24, 2009, which was denied on July 14, 2010. Resp. Ex. 6. Petitioner filed
a notice of appeal on June 30, 2011. Id. The Missouri Court of Appeals affirmed the
denial of post-conviction relief on June 26, 2012, and issued the mandate on July 18,
2012.

Resp. Ex. 9-10; Phillips v. State, 369 S.W.3d 102 (Mo. Ct. App. 2012).

Petitioner filed the instant habeas corpus petition on January 21, 2013.1
II.

Statute of Limitations

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides for a oneyear statute of limitations for habeas corpus petitions. 28 U.S.C. § 2244(d). The
limitations period begins to run on the date that the state court judgment becomes
final by the conclusion of direct review, or when the time for seeking such review
expires, whichever is later.

Id. § 2244(d)(1).

This limitations period is tolled,

however, while a properly filed application for state post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending. Id. § 2244(d)(2).
Under § 2244(d), the instant petition is untimely. Petitioner filed his motion for
post-conviction relief approximately three months after his convictions were affirmed
on direct appeal. After his motion for post-conviction relief was denied on July 14,
2010, petitioner waited more than eleven months to file his notice of appeal. By the
time he filed the notice of appeal on June 30, 2011, the one-year statute of limitations
to file a federal habeas corpus petition had already expired.

He then waited

approximately seven months after the state court denied his appeal on June 26, 2012
before filing the instant federal habeas corpus petition on January 21, 2013.
1

Although the petition was docketed on February 22, 2013, under the “prison mailbox
rule,” a habeas petition is considered “filed” on the date upon which the petitioner delivers the
petition to prison authorities to be mailed to the court. Smith v. Roper, No. 4:03-CV-907HEA(TIA), 2005 WL 2674942, at *2 n.1 (E.D. Mo. Oct. 20, 2005).

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Petitioner argues that he is entitled to equitable tolling of the statute of
limitations. He claims that the state post-conviction motion court failed to give him
notice that it had reached a decision in his case.

Although his motion for post-

conviction relief was denied on July 14, 2010, petitioner states that he was not notified
of that decision until May 25, 2011. Generally, equitable tolling is only appropriate
when a petitioner can establish: “(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way.” Walker v. Norris, 436
F.3d 1026, 1032 (8th Cir. 2006). Regardless of whether the delay in notice amounts
to an extraordinary circumstance, petitioner cannot show that he has diligently pursued
his rights. He allowed approximately seven months to elapse between his receipt of
the final state court decision rejecting his motion for post-conviction relief, and the
date on which he filed his habeas petition. Compare Earl v. Fabian, 556 F.3d 717, 724
(8th Cir. 2009) (rejecting petitioner’s argument for equitable tolling, and finding that
delay in filing habeas petition showed he had not pursued his rights diligently),
with Diaz v. Kelly, 515 F.3d 149, 152-53 (2d Cir. 2008) (concluding that petitioner was
entitled to the benefit of equitable tolling when, after receiving belated notice from
state court that his appeal was denied, he “promptly filed his federal habeas corpus
petition the next day”). Because petitioner has not shown that he has pursued his
rights diligently, he cannot benefit from equitable tolling.
Petitioner also suggests that statutory tolling under 28 U.S.C. § 2244(d)(1)(B)
is warranted in this case. To benefit from statutory tolling under that section, “a
petitioner must show that the state created an impediment to the filing of his petition
by action ‘in violation of the Constitution or laws of the United States.’ If such a
showing is made, the one year AEDPA limitations period runs from the date such

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impediment is removed.” Earl, 556 F.3d at 725 (quoting 28 U.S.C. § 2244(d)(1)(B)).
Petitioner contends that a state-created impediment - namely, the failure to notify him
that the state trial court had denied his motion for post-conviction relief - prevented
him from timely filing his federal habeas petition. Although “lack of notice that a state
judgment of conviction has become final could be an impediment” to justify tolling
under § 2244(d)(1)(B), see id. at 726, lack of notice of a decision on a state postconviction motion is not. Because the statute of limitations period had already begun
when the “impediment” arose, § 2244(d)(1)(B) does not apply. See Chhoeum v.
Shannon, 219 F.Supp.2d 649, 653 (E.D. Pa. 2002), overruled on other grounds,
(holding that 28 U.S.C. § 2244(d)(1)(B) “does not authorize statutory tolling where an
impediment arises during a limitation period that is already running.”).
III.

Conclusion

For the reasons discussed above, the Court concludes that the petition for a writ
of habeas corpus was untimely filed under § 2244(d) and must be dismissed.
Additionally, because petitioner has failed to make a substantial showing of the denial
of a constitutional right, the Court will not issue a certificate of appealability. See Cox
v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 13th day of June, 2014.

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