Holmes v. State of Missouri

Filing 2

MEMORANDUM AND ORDER re: 1 ORDERED that petitioner shall show cause, no later than twenty-one days from the date of this Order, why this action should not be dismissed as time-barred. Show Cause Response due by 12/16/2013.. Signed by District Judge Henry E. Autrey on 11/25/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GLENN M. HOLMES, JR.,
Petitioner,
v.
STATE OF MISSOURI,
Respondent.

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No. 4:13CV2258 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Glenn Holmes’s petition for writ of habeas
corpus under 28 U.S.C. § 2254. The petition appears to be barred by the limitations
period. Accordingly, the Court will direct petitioner to show cause why the petition
should not be dismissed.
Petitioner was convicted of possession of a controlled substance and possession
of not more than thirty-five grams of marijuana. Missouri v. Holmes, No. ED98028
(Mo. Ct. App. 2012). Petitioner sought postconviction relief in the state courts, and
on October 16, 2012, the Missouri Court of Appeals denied his postconviction
appeal. The appellate court issued its mandate on November 8, 2012.
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.
The one-year period of limitations began running no later than November 8,
2012, the date on which the Missouri Court of Appeals issued its mandate. See Payne
v. Kemna, 441 F.3d 570, 571 (8th Cir. 2006). Therefore, it expired by November 8,
2013. Petitioner filed this action on November 13, 2013, the date he brought it to the
Clerk’s office.1 Because petitioner filed it after the limitations period expired, it
appears that this action should be dismissed. See 28 U.S.C. § 2254, Rule 4.
The Court will afford petitioner an opportunity to show good cause why this
action should not be summarily dismissed. Petitioner’s response must be filed no
later than twenty-one days from the date of this Order. See Day v. McDonough, 126
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Petitioner is not incarcerated.
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S. Ct. 1675, 1684 (2006) (district court must give notice to petitioner before sua
sponte dismissing petition as time-barred).
If petitioner does not comply with this Order, the Court will summarily dismiss
this case.
Accordingly,
IT IS HEREBY ORDERED that petitioner shall show cause, no later than
twenty-one days from the date of this Order, why this action should not be dismissed
as time-barred.
Dated this 25th day of November, 2013.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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