Shannon v. Russell
OPINION, MEMORANDUM AND ORDER re: 6 , 2 ORDERED that petitioner's motion for leave to proceed in forma pauperis [ECF No. 2] is GRANTED. FURTHER ORDERED that petitioner's motion for leave to file an amended petition [ECF No. 6] is GRANTED . FURTHER ORDERED that this action is DISMISSED. FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate Order of Dismissal will accompany this Memorandum and Order.. Signed by District Judge Henry E. Autrey on 6/3/13. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:13CV817 SPM
OPINION, MEMORANDUM AND ORDER
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. On May 8, 2013, the Court reviewed the petition and found that it was both
incomplete and untimely, and the Court ordered petitioner to show cause why it
should not be summarily dismissed. In response, petitioner has submitted a motion
for leave to file an amended petition and a proposed amended petition. The Court
will give petitioner leave to file the amended petition. Having reviewed the amended
petition and its exhibits, the Court finds that this action should be dismissed as timebarred.
On September 17, 2007, petitioner pled guilty to tampering, theft, and elder
abuse before a trial court in St. Charles County. See Case Nos. 0711-CR00203;
0711-CR01557; 0711-CR01558. On April 14, 2008, the trial court sentenced
petitioner to three seven-year prison sentences, to run concurrently. Petitioner did not
file a direct appeal.
On January 28, 2010, petitioner filed a Rule 29.15 motion for postconviction
relief in the Circuit Court for St. Charles County. See Case No. 1011-CV00815. On
August 24, 2010, the post-conviction court dismissed the motion as untimely.
Petitioner filed a petition for writ of habeas corpus in the Missouri Court of
Appeals for the Eastern District on April 13, 2011. See No. ED96588 (Mo. Ct. App.).
The appellate court dismissed the petition on April 14, 2011.
Petitioner filed a second petition for writ of habeas corpus in the Missouri
Court of Appeals for the Eastern District on October 5, 2012. See No. ED99056 (Mo.
Ct. App.). The appellate court dismissed the petition on November 20, 2012.
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.
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 one-year period of
limitations under § 2244(d)(1)(A) began to run on April 24, 2008. The limitations
period then ran for more than a year, and expired, before petitioner filed his motion
for postconviction relief on January 28, 2010. Moreover, because the motion for
postconviction relief was untimely, it could not have tolled the limitations period as
it was not a “properly filed” application for post-conviction review. Walker v. Norris,
436 F.3d 1026, 1030 (8th Cir.2006). Petitioner has not asserted a basis for equitable
tolling. As a result, the petition is barred by the limitations period, and the Court will
dismiss this action without further proceedings.
Finally, petitioner has failed to demonstrate that jurists of reason would find
it debatable whether the petition is untimely. Thus, the Court will not issue a
certificate of appealability. 28 U.S.C. § 2253(c).
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in
forma pauperis [ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that petitioner’s motion for leave to file an
amended petition [ECF No. 6] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
A separate Order of Dismissal will accompany this Memorandum and Order.
Dated this 3rd day of June, 2013.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?