Taylor v. Norman

Filing 7

MEMORANDUM AND ORDER. (see order for details) 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 this action is DISMISSED. IT IS FURTHER ORDERED that I wil l not issue a certificate of appealability. IT IS FURTHER ORDERED that the Clerk shall attach a copy of the Order and Judgment entered on December 21, 2012, in Taylor v. State, Case No. 1222-CC02888 (St. Louis City), to this Memorandum and Order. Signed by District Judge Catherine D. Perry on 09/16/2013. (Attachments: # 1 Order and Judgment 22nd Judicial Circuit)(CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEVEN E. TAYLOR,
Petitioner,
v.
JEFF NORMAN,
Respondent.

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No. 4:13 CV 1527 CDP

MEMORANDUM AND ORDER
Petitioner has filed an untimely petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. On August 15, 2013, I ordered petitioner to show cause why this
action should not be summarily dismissed. Petitioner has responded. For the reasons
stated below, I will dismiss the petition.
I will take judicial notice of the state courts’ files. Petitioner pled guilty on
September 7, 2010, to a second degree assault charge State v. Taylor, Case No. 1022CR02220 (St. Louis City). See Taylor v. State, Case No. 1222-CC02888 (St. Louis
City) (Order and J. dated Dec. 21, 2012).1 The trial court sentenced petitioner to a
seven-year term of imprisonment and to shock incarceration under Mo. Rev. Stat.
§ 559.115, and petitioner was transferred to the custody of the Department of
Corrections on September 9, 2010. See Taylor, Order and J. The Board of Probation
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The Court will attach a copy of the Order and Judgment to this Memorandum
and Order.

and Parole prepared a report under § 559.115, and the trial court denied probation to
petitioner on January 4, 2011. See Taylor, Order and J. Petitioner did not file an
appeal. See Pet. at 2.
Petitioner filed a motion for postconviction relief under Missouri Court Rule
24.035 on May 31, 2012. See Taylor, Order and J. The motion court summarily
dismissed the motion as untimely. Id. Rule 24.035(b) requires that postconvictionrelief motions must be filed within 180 days of the delivery of the defendant to the
custody of the Department of Corrections. Mo. Ct. R. 24.035(b); see Taylor, Order
and J. The motion court found that, under Missouri law, it had “no authority to
entertain a motion filed out of time.” Taylor, Order and J.
Petitioner filed the instant petition on August 6, 2013.
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;
...
(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.
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In Missouri, a prisoner has ten days to file a notice of appeal from the date the
criminal judgment is rendered. See Mo. Ct. R. 30.01(a); Mo. Ct. R. 81.04(a). As a
result, the statute of limitations began to run on September 17, 2010. 28 U.S.C.
§ 2244(d)(1)(A). Petitioner did not file his motion for postconviction relief until May
31, 2012. The limitations period ended, therefore, on or about September 17, 2011,
and the instant petition is untimely.
Moreover, because petitioner’s motion for post-conviction relief was dismissed
by the state court as untimely filed, it cannot be considered to toll the one-year
limitations period inasmuch as under the Antiterrorism and Effective Death Penalty
Act of 1996, it was not a “properly filed” application for post-conviction review. See
Walker v. Norris, 436 F.3d 1026, 1030 (8th Cir. 2006).
Petitioner argues that the Court should not dismiss this action as time-barred
because his 120-day shock time sentence was unfair and because he should not have
been convicted. Under the doctrine of equitable tolling, the AEDPA’s statutory
limitations period may be tolled if a petitioner can show that (1) he has been
diligently pursuing his rights and (2) an extraordinary circumstance stood in his way.
Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Equitable tolling is a flexible
procedure that involves both recognition of the role of precedent and an “awareness
of the fact that specific circumstances, often hard to predict in advance, could warrant
special treatment in an appropriate case.”
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Id. at 2563.

Petitioner has not

demonstrated either that he diligently pursued his rights or that an extraordinary
circumstance prevented the timely filing of the petition. E.g., Kreutzer v. Bowersox,
231 F.3d 460, 463 (8th Cir. 2000) (holding that “even in the case of an unrepresented
prisoner alleging a lack of legal knowledge or legal resources, equitable tolling has
not been warranted”). Therefore, he is not entitled to equitable tolling.
Petitioner further argues that the Court has failed to notice that he filed a
previous federal habeas petition that was dismissed without prejudice for failure to
prosecute. Taylor v. Norman, 4:13CV259 CDP (E.D. Mo. May 17, 2013). Although
petitioner’s argument is unclear, he may be arguing either that the federal habeas
petition served to toll the limitations period or that the current habeas petition should
relate back to the earlier one. Neither argument has merit. First, federal habeas
applications do not toll the limitations period under § 2244(d)(2). See Duncan v.
Walker, 533 U.S. 167, 172-73 (2001). Second, when an original federal habeas
petition has been dismissed, there is no pending petition to which a second petition
can relate back to or amend. See Neverson v. Bissonnette, 261 F.3d 120, 126–27 (1st
Cir. 2001); Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001); Marsh v. Soares, 223
F.3d 1217, 1219–20 (10th Cir. 2000); Warren v. Garvin, 219 F.3d 111, 114 (2d Cir.
2000); Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000); Jones v. Morton, 195
F.3d 153, 160–61 (3d Cir. 1999). As a result, the filing of the previous habeas

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petition is irrelevant to the timeliness of the current action. Moreover, the previous
habeas action, filed on February 11, 2013, was untimely under § 2244(d).
For these reasons, I 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. Therefore, I will not issue a certificate
of appealability. 28 U.S.C. § 2253(c).
Accordingly,
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 this action is DISMISSED.
IT IS FURTHER ORDERED that I will not issue a certificate of
appealability.
IT IS FURTHER ORDERED that the Clerk shall attach a copy of the Order
and Judgment entered on December 21, 2012, in Taylor v. State, Case No. 1222CC02888 (St. Louis City), to this Memorandum and Order.
Dated this 16th day of September, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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