Schamel v. Lawrence
Filing
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MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioner is granted leave to proceed in forma pauperis. IT IS FURTHER ORDERED that petitioner shall show cause, in writing and no later than August 7, 2014, why the petition for writ of habeas corpus should not be dismissed as time-barred. Signed by Magistrate Judge Terry I. Adelman on 7/7/14. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN RANDALL SCHAMEL,
Petitioner,
v.
SCOTT LAWRENCE,
Respondent,
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No. 4:14CV1199 TIA
MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The motion appears to be barred by the statute of
limitations. Therefore, the Court will direct petitioner to show cause why it should not be
summarily dismissed.
Petitioner pled guilty to stealing a motor vehicle and driving while intoxicated.
State v. Schamel, No. 07A9-CR00829-01 (Crawford County); State v. Schamel, No.
07A9-CR01511-01 (Crawford County). On November 25, 2008, the trial court sentenced
petitioner to seven years’ imprisonment and to long term substance abuse treatment under
Mo. Rev. Stat. § 217.362.
Section 217.362 allows for probation upon successful
completion of the substance abuse program. On November 13, 2009, the trial court
granted release under § 217.362 and entered judgment of seven years’ imprisonment; the
court, however, suspended the execution of the sentence. Petitioner did not appeal from
the suspended sentence (“SES”). Subsequently, petitioner’s probation was revoked.
Petitioner later filed four petitions for writ of habeas corpus in the state courts. He
filed his first petition on April 4, 2013. Schamel v. Davis, No. 13WE-CC00025 (Webster
County). The court dismissed the petition on May 6, 2013.
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;
...
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of limitation
under this subsection.
In Missouri, an unappealed criminal judgment becomes final ten days after it is
entered. See Mo. Ct. R. 30.01(a); Mo. Ct. R. 81.04(a). At the latest, petitioner’s time for
filing a habeas petition began to run ten days after November 13, 2009, the date the trial
court entered the SES. 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. State v. Nelson, 9 S.W. 3d 687, 688 (Mo.Ct.App.1999).
Because petitioner did not appeal or file any motion for postconviction relief until April
4, 2013, the one-year limitations period expired in November 2010. As a result, it
appears that the petition is time-barred.
Accordingly,
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IT IS HEREBY ORDERED that petitioner is granted leave to proceed in forma
pauperis.
IT IS FURTHER ORDERED that petitioner shall show cause, in writing and no
later than August 7, 2014, why the petition for writ of habeas corpus should not be
dismissed as time-barred.
Dated this 7th day of July, 2014.
/s/Terry I. Adelman
TERRY I. ADELMAN
UNITED STATES MAGISTRATE JUDGE
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