Lebon v. State of Missouri

Filing 4

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioner=s application for writ of habeas corpus pursuant to 28 U.S.C. ' 2254 is DISMISSED without prejudice. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge Jean C. Hamilton on 7/1/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THOMAS P. LEBON,
Petitioner,
v.
STATE OF MISSOURI,
Respondent.

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No. 4:14CV993 JCH

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s application for writ of habeas corpus under
28 U.S.C. ' 2254. Petitioner challenges his current confinement in the St. Louis City Justice
Center, and he seeks an order directing the State of Missouri to overturn his state court conviction
and release him from custody.
Petitioner has not yet briefed a direct appeal of his conviction or filed a motion for
post-conviction relief in the Missouri courts on these issues. Because petitioner has not presented
these issues to the Missouri courts, his petition must be dismissed for failure to exhaust his
available state remedies. 28 U.S.C. ' 2254(b)(1)(A); Rule 4 of the Rules Governing Habeas
Corpus Cases Under ' 2254.
Background
On June 6, 2014, petitioner was sentenced to eight (8) years’ imprisonment for burglary in
the second degree, to run concurrent with a seven (7) year sentence for possession of burglary tools
and a one (1) year sentence for theft. See State v. Lebon, Case No. 1222-CR02756-01 (22nd
Judicial Circuit). In his application for writ of habeas corpus, petitioner seeks a “judgment of
acquittal notwithstanding the verdict of the jury, or in the alternative motion for a new trial.”

The Court notes that the docket in petitioner’s underlying state criminal case, according to
Mo.Case.Net, https://www.courts.mo.gov/casenet.cases.searchDockets/, shows that petitioner
filed a notice of appeal on the date of his sentencing, on June 6, 2014. There is no indication that
petitioner has briefed his direct appeal or yet filed any motions for post-conviction or habeas relief
in state court prior to bringing the instant petition in federal court.
Discussion
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.
Under 28 U.S.C. ' 2254(b)(1),
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 thatB
(A) the applicant has exhausted the remedies available in the courts
of the State . . .
Because it does not appear that petitioner has exhausted any of his available state remedies,
the Court will order dismiss the instant petition, without prejudice, pursuant to 28 U.S.C.
' 2254(b)(1)(A), for failure to exhaust available state remedies.
Accordingly,
IT IS HEREBY ORDERED that petitioner=s application for writ of habeas corpus
pursuant to 28 U.S.C. ' 2254 is DISMISSED without prejudice.

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IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
Dated this 1st day of July, 2014.

/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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