Blanchard v. State of Missouri

Filing 21

OPINION, MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner shall show cause, within thirty (30) days of this Memorandum, Opinion and Order, why his Petition for Writ of Habeas Corpus should not be dismissed, without prejudice, for failure to fully exhaust his state court remedies. Show Cause Response due by 3/10/2015. Signed by District Judge Henry Edward Autrey on 02/10/2015. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BOYCE BLANCHARD,
Petitioner,
v.
ELLIS MCSWAIN, JR., Chairman,
Missouri Board of Probation and Parole,
Respondent.

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No. 4:13CV2446 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus, filed
pursuant to 28 U.S.C. § 2254 [Doc. No. 1]. Respondent has filed his Response to the Court’s
Order to Show Cause. [Doc. No. 9]. Petitioner has filed a reply. [Doc. No. 15]. Because it
appears that Petitioner still has claims pending before the Missouri courts, Petitioner will be
required to show cause why his Petition should not be dismissed, without prejudice, for failure to
fully exhaust available state remedies. 28 U.S.C. ' 2254(b)(1)(A); Rule 4 of the Rules Governing
Habeas Corpus Cases Under ' 2254.
Background
On May 17, 2011, Petitioner was convicted of two counts of felony possession of a
controlled substance. (No. 0922-CR00725-01). On October 6, 2011, he was sentenced to two
concurrent terms of imprisonment of seven years. (Id.). Petitioner has been released from prison
and is currently on parole.
On November 7, 2011, Petitioner appealed his conviction. (No. ED97564. The Missouri
Court of Appeals affirmed on December 26, 2012. State v. Blanchard, 400 S.W.3d 316 (Mo. Ct.
App. 2012). Petitioner’s application to transfer his appeal to the Supreme Court of Missouri was
filed on January 10, 2013, and denied on June 25, 2013. (No. SC93391). While Petitioner’s

initial appeal was pending, he filed a Petition for Writ of Habeas Corpus in the Supreme Court of
Missouri, which was denied on August 8, 2012. (No. SC92668).
On July 26, 2013, Petitioner filed a pro se motion for post-conviction relief pursuant to
Missouri Supreme Court Rule 29.15. (No. 1322-CC09060). Counsel entered an appearance for
Petitioner on November 6, 2013 and filed an amended motion on February 4, 2014. (Id.).
On December 4, 2013, while Petitioner’s pro se motion for post-conviction relief was
pending in state court, he filed the federal habeas petition currently before this Court. [Doc. No.
1].
In an order dated February 18, 2014, the state motion court denied Petitioner’s amended
motion for post-conviction relief. (No. 1322-CC09060). On March 31, 2014, Petitioner filed an
appeal of the state motion court’s denial of his motion for post-conviction relief. (No.
ED101294). Appellant filed his appellate brief on October 27, 2014, and the State filed its
response on January 26, 2015. (Id.). That appeal is still pending. Notably, neither Petitioner, nor
Respondent, advised this Court of Petitioner’s motion for post-conviction relief, its denial, or
Petitioner’s appeal thereof.
Discussion
One who pursues relief under 28 U.S.C. §2254 must have exhausted the remedies
available in the courts of the State. 28 U.S.C. ' 2254(b)(1)(A) (“An application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted the remedies available in the
courts of the State.”). In order to effectuate the fulfillment of this requirement, “state prisoners
must give the state courts one full opportunity to resolve any constitutional issues by invoking
one complete round of the State’s established appellate review process” before presenting those
issues as application for federal habeas relief in federal court. O’Sullivan v. Boerckel, 526 U.S.

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838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). State remedies are ordinarily not considered
exhausted if an individual may effectively present his claim to the state courts by any currently
available and adequate procedure.
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. In this case, it is apparent that the Missouri Appellate Court has
not yet ruled on petitioner’s post-conviction appeal. As a result, Petitioner’s available state
remedies have not yet been exhausted, and the petition is subject to dismissal without prejudice.
Petitioner will, therefore, be required to show cause, within thirty (30) days of the date of
this Opinion, Memorandum and Order, why his Petition should not be dismissed, without
prejudice, due to his failure to fully exhaust his state court remedies.
Accordingly,
IT IS HEREBY ORDERED that Petitioner shall show cause, within thirty (30) days of
this Memorandum, Opinion and Order, why his Petition for Writ of Habeas Corpus should not be
dismissed, without prejudice, for failure to fully exhaust his state court remedies.
Dated this 10th day of February, 2015.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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