Missey v. Bowersox

Filing 4

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Petitioner shall show cause within thirty (30) days of the date of this Order as to why the Court should not dismiss the instant application for a writ of habeas corpus as time -barred. Petitioner's failure to file a show cause response will result in the dismissal of this action. IT IS FURTHER ORDERED that the Clerk shall mail to Petitioner a form "Motion to Proceed In Forma Pauperis and Affidavit in Support Ha beas Cases." IT IS FURTHER ORDERED that Petitioner shall have thirty (30) days from the date of this order either to pay the statutory filing fee of $5 or to submit a completed "Motion to Proceed In Forma Pauperis and Affidavit in Support Habeas Cases." ( Show Cause Response due by 5/30/2013.) Signed by Magistrate Judge Thomas C. Mummert, III on 05/03/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID L. MISSEY,
Petitioner,
vs.
MICHAEL BOWERSOX,
Respondent.

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Case No. 4:13cv0797 TCM

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner's application for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Court will order Petitioner
to show cause why the petition should not be dismissed as untimely.
According to the petition, Petitioner was convicted of statutory sodomy in 2002 and
sentenced to twenty-five years' imprisonment. Petitioner appealed, and the Missouri Court
of Appeals affirmed the conviction on April 13, 2004.
Petitioner alleges that several years later he obtained the prosecutor's file from his
criminal action. Petitioner asserts that the file contained exculpatory information that was
never provided to the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Petitioner claims that when he learned about the alleged prosecutorial misconduct, he filed
a habeas petition in state court, Missey v. Bowersox, 11TE-CC00172 (Texas County), on
December 23, 2010. This petition was denied on September 20, 2011.

One hundred thirty-two days later, on January 30, 2012, Petitioner filed a petition for
writ of habeas corpus in the Missouri Court of Appeals for the Southern District. The
appellate court denied the petition on February 15, 2012. See In re: Missey v. Bowersox,
SD31836 (Mo. Ct. App.).
Three hundred fifty days later, on January 30, 2013, Petitioner filed a petition for writ
of habeas corpus in the Missouri Supreme Court. The Missouri Supreme Court denied the
petition on March 19, 2013. See Missey v. Bowersox, SC93105 (Mo. banc).
Petitioner filed the instant petition for writ of habeas corpus under § 2254 on April 2,
2013. Petitioner is confined at the South Central Correctional Center, where Michael
Bowersox is the Warden.
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;
(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

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(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) 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.
Petitioner relies on § 2244(d)(1)(D) in maintaining that his petition has been timely
filed.
Petitioner states that when he learned of the alleged Brady violation, he filed his
petition for writ of habeas corpus in the Circuit Court for Texas County. After that case was
dismissed, 132 days elapsed before he filed the petition in the Missouri Court of Appeals for
the Southern District. After the appellate court dismissed the petition, 350 days elapsed
before he filed his petition in the Missouri Supreme Court. And, after the Missouri Supreme
Court dismissed the petition, 14 days elapsed before he filed the instant petition for writ of
habeas corpus. Therefore, at least 496 non-tolled days elapsed from the date petitioner
learned about his Brady claim to the date the instant petition was filed, which is well beyond
the one-year limitation period. As a result, the Court will order Petitioner to show cause why
the petition should not be dismissed as time-barred. See 28 U.S.C. § 2254 Rule 4; Day v.
McDonough, 126 S. Ct. 1675, 1684 (2006) (district court must give notice to petitioner
before sua sponte dismissing petition as time-barred).
Finally, when Petitioner initially filed this action in the United States District Court
for the Western District of Missouri, he did not pay the $5 filing fee or file a motion for leave

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to proceed in forma pauperis. The Western District granted petitioner provisional leave to
proceed in forma pauperis, subject to modification by this Court. Petitioner must either pay
the filing fee or file a motion for leave to proceed in forma pauperis to proceed in this Court.
Accordingly,
IT IS HEREBY ORDERED that Petitioner shall show cause within thirty (30) days
of the date of this Order as to why the Court should not dismiss the instant application for a
writ of habeas corpus as time-barred. Petitioner's failure to file a show cause response will
result in the dismissal of this action.
IT IS FURTHER ORDERED that the Clerk shall mail to Petitioner a form "Motion
to Proceed In Forma Pauperis and Affidavit in Support – Habeas Cases."
IT IS FURTHER ORDERED that Petitioner shall have thirty (30) days from the
date of this order either to pay the statutory filing fee of $5 or to submit a completed "Motion
to Proceed In Forma Pauperis and Affidavit in Support – Habeas Cases."
Dated this 3rd day of May, 2013.

/s/Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE

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