Shannon v. Russell
OPINION, MEMORANDUM AND ORDER re: 1 ORDERED that petitioner shall show cause, in writing and no later than thirty days from the date of this Order, why this action should not be dismissed as time-barred. FURTHER ORDERED that if petitioner fails to comply with this Order, this action will be dismissed. Show Cause Response due by 6/8/2013.. Signed by District Judge Henry E. Autrey on 5/8/13. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:13CV817 SPM
OPINION, 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 untimely, and the Court will
require petitioner to show cause why it should not be summarily dismissed.
The instant petition is incomplete. There is no case number, date of judgment,
or date of sentencing for the underlying criminal action. Petitioner did not fill out the
portion of the form describing his direct appeal, Rule 24.035 motion for
postconviction relief, or the appeal therefrom. Petitioner only specifies one appellate
case that he filed, Shannon v. Russell, ED96588 (Mo. Ct. App.). The state court’s
docket sheet describes that action as an original habeas petition. See Case.net,
https://www.courts.mo.gov/casenet/cases/searchDockets.do (accessed May 6, 2013).
Petitioner filed the petition on April 13, 2011, and the Missouri Court of Appeals
dismissed it on April 14, 2011.
Petitioner filed the instant petition on April 22, 2013, which is the date he
placed it in the prison mail system.
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;
(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
(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.
Assuming the limitations period did not begin to run until after the state
appellate court dismissed the April 2011 habeas petition, the instant petition is
untimely. Petitioner would have been required to file the instant action no later than
April 14, 2012. Petitioner, however, did not file it until more than a year after the
limitations period expired. Therefore, the Court will require petitioner to show cause
why the instant action should not be summarily dismissed.
IT IS HEREBY ORDERED that petitioner shall show cause, in writing and
no later than thirty days from the date of this Order, why this action should not be
dismissed as time-barred.
IT IS FURTHER ORDERED that if petitioner fails to comply with this
Order, this action will be dismissed.
Dated this 8th day of May, 2013.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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