Blaine v. Lombardi
MEMORANDUM AND ORDER: ORDERED that petitioner shall show cause, in writing and no later than thirty (30) 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 9/11/2013.. Signed by Magistrate Judge Nannette A. Baker on 8/12/13. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DENORVEL M. BLAINE,
No. 4:13CV1517 NAB
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 barred by the one-year
limitations period, and the Court will order petitioner to show cause why the petition
should not be dismissed.
Petitioner seeks to challenge a judgment imposed by the St. Louis County
Circuit Court in 1985. State v. Blaine, No. 21CCR-513503 (21st Judicial Cir.).
Petitioner was convicted of second degree murder and was sentenced to forty-nine
years’ imprisonment. State v. Blaine, 719 S.W.2d 900, 901 (Mo. Ct. App. 1986). The
sentence was upheld on appeal, id., and the state courts denied post-conviction relief,
see Blaine v. State, 778 S.W.2d 700, 701 (Mo. Ct. App. 1989). The Missouri Court
of Appeals issued its mandate from the denial of post-conviction relief on November
16, 1989. Id.
In the instant petition, petitioner contends that the sentence imposed was
excessive under the Fourteenth Amendment.
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.
The one-year period of limitations for filing habeas petitions did not exist when
petitioner was convicted, or prior to enactment of the AEDPA on April 24, 1996.
In addressing this issue, the United States Court of Appeals for the Eighth
Circuit has “held that time before the effective date of AEDPA, April 24, 1996, is not
counted in computing the one-year period of limitation [under § 2244(d)]. Prisoners
whose judgments of conviction became final before the effective date of AEDPA are
given a one-year period after that date, or until April 24, 1997, plus any additional
periods during which the statute is tolled.” Peterson v. Gammon, 200 F.3d 1202, 1204
(8th Cir. 2000). As a result, the one-year period of limitations for the instant petition
expired more than sixteen years before it was filed.
The Court will order petitioner to show cause, in writing and no later than thirty
days from the date of this Order, why the instant petition should not be dismissed as
time-barred. See Day v. McDonough, 126 S. Ct. 1675, 1684 (2006) (district court
must give notice to petitioner before sua sponte dismissing petition as time-barred).
IT IS HEREBY ORDERED that petitioner shall show cause, in writing and
no later than thirty (30) 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 12th day of August, 2013.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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