Davis v. Wallace

Filing 6

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's petition for writ of habeas corpus under 28 U.S.C. § 2254 is DISMISSED. A separate Order of Dismissal will be filed contemporaneously. Signed by District Judge John A. Ross on 10/15/13. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT CHARLES DAVIS,
Petitioner,
v.
IAN WALLACE,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:13CV1197 NAB

MEMORANDUM AND ORDER
The Court ordered petitioner to show cause no later than October 2, 2013, why
his petition for writ of habeas corpus should not be dismissed as time-barred.
Petitioner has failed to respond. As a result, the Court will dismiss this action without
further proceedings.
Background
Petitioner was convicted by a jury of first degree murder and armed criminal
action. On August 6, 2004, the state court sentenced petitioner to life without parole.
Petitioner filed a direct appeal, and the Missouri Court of Appeals affirmed the
judgment on November 8, 2005. State v. Davis, 175 S.W.3d 695 (Mo. Ct. App.
2005).
Petitioner filed a motion for postconviction relief under Rule 29.15, which was
received by the Missouri Court of Appeals on March 1, 2006. On February 19, 2010,

the motion court dismissed the motion as untimely. Petitioner did not appeal from the
denial of postconviction relief.
On October 22, 2012, petitioner filed a petition for writ of mandamus in the
Missouri Court of Appeals. Davis v. Hon. Michael Calvin, No. ED99130 (Mo. Ct.
App.). Petitioner says the petition was directed at the motion court and alleged that
the motion court erred in dismissing his Rule 29.15 motion as untimely. The appellate
court denied the petition on November 29, 2012. Id.
Petitioner says that he attempted to file a writ in the Missouri Supreme Court
in January 2013 but that the Court Clerk told him his “attempt was inapplicable.”
Petitioner filed the instant petition for writ of habeas corpus on June 17, 2013,
which is the date he placed it in the prison mailing system.
Standard
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--

-2-

(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.
Discussion
Petitioner’s criminal judgment became final for purposes of § 2244(d) when the
time for filing a motion for rehearing by the Missouri Supreme Court expired.
Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012). Such time expired on November
23, 2005, see Mo. Rule 83.02, which is the date the limitations period began running.
Assuming, arguendo, that petitioner’s Rule 29.15 motion was a “properly filed
application,” the limitations period ran for 98 days until it was tolled from March 1,

-3-

2006, through March 1, 2010. See Mo. Rule 81.04 (judgment becomes final ten days
after issued if no appeal is taken).
Assuming, arguendo, that petitioner’s petition for writ of mandamus in the
Missouri Court of Appeals was a “properly filed application,” the limitations period
ran for another 235 days until it was tolled from October 22, 2012, through November
29, 2012.
The limitations period ran for another 32 days until it expired on December 31,
2012. Therefore, the limitations period expired at least six months before petitioner
filed the instant petition.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s petition for writ of habeas corpus
under 28 U.S.C. § 2254 is DISMISSED.
A separate Order of Dismissal will be filed contemporaneously.
Dated this 15th day of October, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

-4-