Walker v. Hurley

Filing 22

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Petitioner's motion for stay and abeyance is DENIED. (Doc. No. 3 .) Signed by District Judge Audrey G. Fleissig on 9/22/2014. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TIMOTHY WALKER,
Petitioner,
v.
JAMES HURLEY,
Respondent.

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No. 4:14-CV-00321-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s motion (Doc. No. 3) for an order to
stay and hold his federal habeas petition in abeyance pending his exhaustion of claims that
he raised in a state court motion to reopen his post-conviction proceedings. For the reasons
set forth below, Petitioner’s motion shall be denied.
BACKGROUND
On June 25, 2009, a Missouri court entered its sentence and judgment of conviction
against Petitioner on the charge of involuntary manslaughter. On direct appeal, in an
opinion issued on December 7, 2010, the Missouri Court of Appeals affirmed Petitioner’s
conviction. On March 30, 2011, Petitioner filed a pro se motion for state post-conviction
relief under Missouri Supreme Court Rule 29.15, and on July 15, 2011, Petitioner amended
his motion with the assistance of a public defender. The only claims raised on appeal from
denial of the post-conviction motion were that trial counsel was ineffective for failing to call
a certain witness and for failing to have certain evidence tested for DNA, and that appellate

counsel was ineffective for failing to assert on direct appeal that the trial court erred in
denying trial counsel’s request for a lesser-included offense instruction. On February 26,
2013, the Missouri Court of Appeals affirmed the denial of Petitioner’s amended postconviction motion.
On December 9, 2013, Petitioner filed a motion in state court to reopen his postconviction proceedings due to abandonment of counsel. Specifically, Petitioner claimed
that direct appeal counsel abandoned him by failing to preserve several claims of error that
were raised by Petitioner’s trial counsel. Petitioner also claimed that post-conviction
counsel abandoned him by filing a deficient post-conviction motion.
On February 20, 2014, Petitioner filed his federal habeas petition, which asserts
several claims, including the abandonment of direct appeal and post-conviction counsel
claims discussed above. The same day, Petitioner filed the present motion for stay and
abeyance, asserting that the federal habeas action should be stayed because Petitioner’s state
court motion to reopen his post-conviction proceedings had not yet been adjudicated.
Respondent filed a response to the motion for stay and abeyance on May 30, 2014.
Respondent notes that Petitioner’s state court motion to reopen has in fact been adjudicated
and was denied on December 11, 2013, two days after the motion was filed.
The state court judgment, which is attached as an exhibit to Respondent’s response,
denied Petitioner’s motion to reopen because the state court found it had no remaining
jurisdiction to consider issues regarding abandonment of direct appeal counsel that were or
could have been raised in Petitioner’s initial post-conviction motion. The state court also
held that Petitioner’s claim regarding abandonment of post-conviction counsel failed

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because Missouri does not recognize a constitutional challenge of ineffective assistance of
post-conviction counsel and because there was no evidence that the actions of postconviction counsel constituted abandonment. Petitioner did not appeal the denial of his
motion to reopen.
In his reply in support of the present motion for stay and abeyance, Petitioner states
that he was never served a copy of the state court judgment denying his motion to reopen.
For that reason, on July 30, 2014, Petitioner filed a second motion in state court to
reconsider the denial of his motion to reopen. On August 6, 2014, the state trial court issued
an order denying Petitioner’s motion to reconsider, and on September 8, 2014, Petitioner
appealed that order to the Missouri Court of Appeals. https://www.courts.mo.gov/casenet,
Case No. 1111-CV03043. As of the date of this Order, Petitioner’s state court appeal of the
motion to reconsider is still pending. Id.
Respondent has also filed a response to the Court’s Order to show cause why habeas
relief should not be granted. Respondent contends that all of the claims raised in
Petitioner’s habeas petition are barred by the statute of limitations, but Respondent does not
otherwise contend that this Court is procedurally barred from considering Petitioner’s
abandonment of counsel claims.
DISCUSSION
The “stay and abeyance” procedure in habeas actions is used when a federal habeas
petitioner presents a “mixed” habeas petition containing exhausted and unexhausted claims.
Under this procedure, a federal district court has discretion to stay the habeas action to
allow the petitioner to present his unexhausted claims to the state court and then return to

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federal court for review of his petition. Rhines v. Weber, 544 U.S. 269, 275-76 (2005).
Stay and abeyance is only appropriate in limited circumstances, when the district court finds
good cause for a petitioner’s failure to exhaust his claims in the state court, and the
unexhausted claims are not “plainly meritless.” Id. at 277. “[I]f no state court remedy is
available for the unexhausted claim—that is, if resort to the state courts would be futile—
then the exhaustion requirement in [28 U.S.C.] § 2254(b) is satisfied,” but the claim may
have been procedurally defaulted in state court. Armstrong v. Iowa, 418 F.3d 924, 926 (8th
Cir. 2005). In such cases, a stay and abeyance is unnecessary, and the Court must instead
consider whether the claim has been procedurally defaulted, and if so, whether the default
may be excused. Id.
Here, Petitioner’s abandonment of counsel claims do not appear to be unexhausted.
The state court has already adjudicated Petitioner’s abandonment of counsel claims in at
least one unappealed order, and the Court is not convinced that Petitioner has any non-futile
state court remedy left to exhaust. Moreover, Respondent does not contend that the Court is
procedurally barred from considering Petitioner’s abandonment of counsel claims due to
any failure to exhaust these claims. The only procedural bar Respondent raises regarding
the abandonment of counsel claims is the statute of limitations. As such, the Court finds
that a stay and abeyance is unnecessary.

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CONCLUSION
IT IS HEREBY ORDERED that Petitioner’s motion for stay and abeyance is
DENIED. (Doc. No. 3.)

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of September, 2014.

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