Blaine v. Lombardi

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition is DISMISSED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. An Order of Dismissal will be filed with this Memorandum and Order. Signed by District Judge John A. Ross on 8/26/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DENORVEL M. BLAINE,
Petitioner,
v.
GEORGE LOMBARDI,
Respondent.

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No. 4:13CV1517 NAB

MEMORANDUM AND ORDER
This matter is before the Court on review of petitioner’s petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The Court has determined that petitioner
is not entitled to relief, and the Court will dismiss this action pursuant to Rule 4 of the
Rules Governing § 2254 Cases.
Petitioner was convicted of second degree murder and was sentenced to fortynine years’ imprisonment in 1985. 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 postconviction 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. Petitioner filed a motion to recall the mandate on
December 21, 1993, which the appellate court denied.
The Court previously found that the petition was untimely, and the Court
ordered petitioner to show cause why the petition should not be summarily dismissed.

Petitioner has responded that he is not challenging his judgment or sentence. He states
that he is challenging the “arbitrary” denial of his motion to recall the mandate.
Pursuant to 28 U.S.C. § 2254, “a district court shall entertain an application for
a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Because petitioner is
not challenging the fact of his custody or the validity of the state court’s judgment, his
petition must be dismissed.
Moreover, even if petitioner were raising a cognizable claim, his petition would
have to be dismissed as time-barred. Title 28 U.S.C. § 2244(d) imposes a one-year
limitations period on the filing of § 2254 petitions. 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 ago.

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For these reasons, petitioner is not entitled to federal habeas relief.
Furthermore, petitioner has failed to make a substantial showing of the denial of a
constitutional right, which requires a demonstration “that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional
right.” Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted).
Thus, the Court will not issue a certificate of appealability. 28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that the petition is DISMISSED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
An Order of Dismissal will be filed with this Memorandum and Order.
Dated this 26th day of August, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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