Penton v. Russell

Filing 31

OPINION, MEMORANDUM AND ORDER re: 1 ORDERED that the Petition is DENIED. FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Petitioner has not made a substantial showing of the denial of a federal constitutional right. A separate judgment is entered this same date. Signed by District Judge Henry Edward Autrey on 5/20/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARLAN A. PENTON,
Petitioner,
vs.
TERRY RUSSELL,
Respondent.

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No. 4:13CV554 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the petition of Missouri state prisoner
Marlan A. Penton for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254,
[Doc. No. 1]. Respondent has filed a Response to order to show cause [Doc. No.
11]. Petitioner has filed a reply [Doc. No. 16]. For the reasons set forth following
the Petition will be denied.
Background1
On January 25, 2002, Petitioner was convicted of attempted escape by the
Circuit Court of St. Francois County, Missouri, and sentenced to five years
imprisonment, to run consecutively with the sentences he was already serving.
Petitioner did not appeal the conviction or timely file a Rule 24.035 motion for

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All factual references are taken from the pleadings and exhibits filed in this
matter by the parties.

post-conviction relief.
Petitioner did not file the PCR motion with the Circuit Court of St. Francois
County, Missouri, until April 30, 2003. The court dismissed the petition on July
22, 2003. Petitioner appealed to the Missouri Court of Appeals, Eastern District of
Missouri. The court of appeals in turn dismissed the appeal on March 31, 2004,
because Petitioner had failed to perfect his appeal.
Thereafter, on January 20, 2009, Petitioner filed a petition for writ of habeas
with the Circuit Court of St. Francois County. That petition for writ of habeas
corpus was denied on March 25, 2009. On February 7, 2012, Petitioner filed a
petition for writ of habeas corpus with the Missouri Court of Appeals, Eastern
District. Petitioner was met with another denial February 15, 2012. Finally, on
December 17, 2012, Petitioner filed a petition for writ of habeas corpus with the
Missouri Supreme Court which was denied on January 29, 2012.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254
(AEDPA) applies to all petitions for habeas relief filed by state prisoners after the
statute’s effective date of April 24, 1996. When reviewing a claim that has been
decided on the merits by a state court, AEDPA limits the scope of judicial review

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in a habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a state court shall not be granted
with respect to any claim that was adjudicated on the merits in state
court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.
28 U.S.C. § 2254(d).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, 529 U.S. 362 (2000), held that:
Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
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of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
Williams, 529 U.S. at 412-13. Furthermore, the Williams Court held that “a
federal habeas court may not issue the writ simply because that court concludes in
its independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” Williams, 529 U.S. at 409.
Grounds for Relief
As a basis for relief under this federal habeas corpus application Petitioner
asserts (1) Section 575.210 RSMo is unconstitutionally vague; (2) The indictment
charging him with the offense was insufficient; (3) His guilty plea was not
intelligently made because he should have been charged under Section 217.390
RSMo.
Respondent asserts that all of Petitioner’s grounds for federal habeas relief
lack merit. Respondent also argues the Petition is procedurally barred and
untimely as it was not appropriately pursued in the State court.
Discussion
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Timeliness of Filing
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), there is a one-year statute of limitations when a state prisoner
petitions for federal habeas corpus relief. King v. Hobbs, 666 F.3d 1132, 1134-35
(8th Cir. 2012) (citing 28 U.S.C. § 2244(d)(1)). The statute of limitations begins to
run on “the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A).
The date on which judgment becomes final, and the statute of limitations
begins to run, differs based on the level of review sought by the petitioner. If the
petitioner sought review in the “state court of last resort,” then the Supreme Court
has jurisdiction to review the appeal and judgment will be considered final 90 days
after the conclusion of the direct criminal appeals in the state system. Id. (citing
Gonzalez, 132 S. Ct. at 656); see also Sup. Ct. R. 13.1; 28 U.S.C. § 1257(a). On
the other hand, should a state prisoner opt not to seek review in the “state court of
last resort,” then “the judgment becomes final on the date that the time for seeking
such review expires.” Id. (quoting Gonzalez, 132 S.Ct. at 646). Once judgment is
final, the statute of limitations begins to run. See 28 U.S.C. § 2244(d)(1)(A).
Here, Petitioner did not file a direct appeal of his conviction. Pursuant to
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Missouri Supreme Court rule 30.01, 81.04 Petitioner had 10 days after his
conviction in which to file his appeal. February 4, 2002 was the date upon which
direct review of his conviction was complete and the statute of limitations under
AEDPA began to run on February 5, 2002. See Fed.R.Civ.P. 6(a)(1)(A) (day of the
event that triggers the time period is excluded from the time of computation).
Petitioner waited over a year to file his Rule 24.035 post-conviction relief motion.
As a matter of fact, he did not file the PCR motion until April 30, 2003. That
litigation continued until the court of appeals dismissed Petitioner’s appeal and
affirmed the denial of post-conviction relief on March 31, 2004.
The petition is out of time. Over a year elapsed between the finality of the
sentence of judgment on February 4, 2002, and the filing of the post-conviction
relief motion on April 30, 2003. See Jackson v. Dormire, 180 F.3d 919, 920 (8th
Cir. 1999) (deadline for seeking federal habeas corpus will not be affected by state
collateral action that was filed after the federal deadline). Under AEDPA,
Petitioner’s federal habeas petition was time barred back on February 5, 2003.
Penton did not sign and place his federal habeas petition in the prison mail system
until March 19, 2013. The petition is barred by the statute of limitations set forth in
28 U.S.C. § 2244(d)(1)(A).
Procedural bar
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One who pursues relief under 28 U.S.C. §2254(b)(1)(A) must exhausted the
remedies available in the courts of the State. In order to effectuate the fulfillment of
this requirement, “state prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process” before presenting those issues as application
for federal habeas relief in federal court. O'Sullivan v. Boerckel, 526 U.S. 838,

845 (1999). “A federal habeas petitioner’s claims must rely on the same factual
and legal bases relied on in state court”; otherwise, they are defaulted.
Winfield v. Roper, 460 F.3d 1026, 1034 (8th Cir. 2006).
Exhaustion “refers only to remedies still available at the time of the federal
petition.” Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982). Thus, “if it is clear that
[ the habeas petitioner’s ] claims are now procedurally barred under [state] law,” the
exhaustion requirement is satisfied. Castille v. Peoples, 489 U.S. 346, 351 (1989).
“[T]he procedural bar that gives rise to exhaustion provides an independent and
adequate state-law ground for the conviction and sentence, and thus prevents federal
habeas corpus review of the defaulted claim, unless the petitioner can demonstrate
cause and prejudice for the default.” Gray v. Netherland, 518 U.S. 152, 161-62
(1996).

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In Missouri, “habeas corpus is not a substitute for appeal or post-conviction
proceedings.” State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc
1993). “Missouri law requires that a habeas petitioner bring any claim that a
conviction violates the federal or state constitution, including a claim of ineffective
assistance of counsel, in a motion for post-conviction relief.” Moore-El v. Luebbers,
446 F.3d 890, 896 (8th Cir. 2006). Accordingly, an offender who fails to raise his
claims on direct appeal or in a post-conviction motion has procedurally defaulted
those claims “and cannot raise [the waived claims] in a subsequent petition for
habeas corpus.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001).
Petitioner herein did not file a direct appeal of his 2002 conviction, failed to timely
file a PCR motion, and then did not perfect his PCR appeal. His claims are,
therefore, procedurally barred.
There are circumstances where a court may nonetheless reach the merits of a
procedurally barred claim, but only if “the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). In order
to satisfy the “cause” requirement, Petitioner must show that an “external”
impediment prevented him from presenting his claim to the state court in a
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procedurally proper manner. Id. at 753. In this case, Petitioner does not allege cause
and prejudice, or actual innocence. The claims contained in Petitioner’s petition are
therefore procedurally barred.
As Petitioner has failed to fall within the ambit of reviewable applications for
writ of habeas corpus the court will n ot address his claims relating to the merits of
his applicaton
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
substantial showing of the denial of a constitutional right requires that “issues are
debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997). This Court finds that Petitioner has not made a substantial showing of the
denial of a constitutional right. A Certificate of Appealability will therefore not be
issued.
Accordingly,
IT IS HEREBY ORDERED that the Petition is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
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Appealability as Petitioner has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 20th day of May, 2014.

_________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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