Fleming v. Norman

Filing 7

MEMORANDUM - Finally, petitioner has failed to demonstrate that jurists of reason would find it debatable whether the petition is untimely. Thus, the Court will not issue a certificate of appealability. 28 U.S.C. ' 2253(c).A dismissal order will accompany this Memorandum. Signed by District Judge Carol E. Jackson on 3/17/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM A. FLEMING,
Petitioner,

JEFF NORMAN,
Respondent,

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No. 4:14CV118 CEJ

MEMORANDUM
This matter is before the Court on the petition of William A. Fleming for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. On February 7, 2014, the Court ordered
petitioner to show cause why the petition should not be dismissed as time-barred, and
petitioner has failed to respond. After careful consideration, the Court finds that the
petition is time-barred, and the Court will summarily dismiss it pursuant to Rule 4 of the
Rules Governing § 2254 Cases in the United States District Courts.
In May 2008 petitioner was charged with two counts of domestic assault in the
second degree. Missouri v. Fleming, No. 08D7-CR00864-01 (St. Francois County).
Petitioner pled guilty to the charges, and on July, 31, 2008, the trial court sentenced him
to seven years’ imprisonment.

However, the court suspended the execution of the

sentence and placed petitioner on probation. Petitioner did not file a direct appeal.
In March 2013 the trial court found that petitioner had violated the conditions of
his probation and ordered that it be suspended. On April 12, 2013, the court revoked
petitioner’s probation and sentenced him to seven years’ imprisonment. On October 9,

2013, petitioner filed a Rule 24.035 motion for postconviction relief challenging the 2008
conviction. Fleming v. Missouri, No. 13SF-CC00208 (St. Francois County). The court
appointed counsel for petitioner, and the petition is currently pending. Id.
In the instant petition, petitioner argues (1) that the May 2008 warrant for his
arrest violated the Double Jeopardy Clause, (2) that he was arrested in 2008 without
probable cause, (3) that his 2008 trial counsel was ineffective, (4) that his 2008 sentence
violated the Eighth Amendment, and (5) that he was deprived of due process because the
Information included two counts although there was only one incident.
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.

A district court can dismiss an

untimely § 2254 petition on its own motion after giving notice to the petitioner. See Day
v. McDonough, 126 S. Ct. 1675, 1684 (2006).
Title 28 U.S.C. § 2244(d), imposes a one-year limitation period on the filing of
§ 2254 petitions in the federal courts. A petitioner generally has one year from the date
the conviction became final to file a federal habeas petition. 28 U.S.C. § 2244(d)(1)(A).
Exceptions exist, but none of the exceptions appear to apply in this case. Nor does the
limitations period appear to have been tolled under § 2244(d)(2).
Under Missouri law a suspended execution of sentence is an entry of judgment,
because the sentence has been assessed and only the act of executing the sentence has
been suspended. E.g., Missouri v. Nelson, 9 S.W.3d 687, 688 (Mo. Ct. App. 1999). The
time for filing a direct appeal of the judgment expired ten days after the judgment was

entered. Id.; Mo. Sup. Ct. R. 30.01(d). As a result, petitioner’s judgment became final
on about August 10, 2008. Because petitioner did not file an appeal or motion for
postconviction relief within the one-year period, the limitations period for filing a federal
habeas petition expired on August 10, 2009. The petition is therefore barred by the
limitations period.
Finally, petitioner has failed to demonstrate that jurists of reason would find it
debatable whether the petition is untimely. Thus, the Court will not issue a certificate of
appealability. 28 U.S.C. ' 2253(c).
A dismissal order will accompany this Memorandum.
Dated this 17th day of March, 2014.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE