David v. Mesmer

Filing 12

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition of Sheila David for a writ of habeas corpus relief is further STAYED pending final disposition by the Missouri Supreme Court on her state habeas corpus action. IT IS FURTHER ORDERED that Petitioner shall notify this Court of within 30 days of such disposition. IT IS FURTHER ORDERED that the Clerk of Court shall administratively close this case pending further Order by the Court. Signed by District Judge John A. Ross on 9/26/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SHEILA DAVID,
Petitioner,
vs.
ANGELA MESMER,
Respondent.

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Case No. 4:14-cv-1640-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Missouri state prisoner Sheila David’s petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, habeas relief
will be stayed to permit Petitioner to exhaust state remedies.
BACKGROUND
In her petition, Petitioner challenges her April 20, 2012 conviction for the offense of
stealing in excess of $25,000 and her sentence of twenty year’s imprisonment. Petitioner raises
three claims: (1) Petitioner’s plea was involuntarily and unknowingly entered because it was
induced by a promise made by the state court that she would receive probation so that she could
pay restitution; (2) plea counsel was ineffective in that she failed to present mitigating evidence;
and (3) had plea counsel presented mitigating evidence, Petitioner would have received a lesser
sentence.
On March 9, 2017, Petitioner, through appointed counsel, filed a state habeas corpus
petition, which is currently pending before the Missouri Supreme Court, State ex rel Sheila
David v. Angela Mesmer, No. SC96263 (Mo. filed March 9, 2017). There, Petitioner argues that
she is being detained in violation of her right to due process because the felony enhancement of

her stealing conviction violated the clear and unambiguous language of the stealing statute, Mo.
Rev. Stat. §§ 570.030.1 and 570.030.7 (2002). Specifically, Petitioner cites the recent decision
of State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016), in which the Missouri Supreme Court held
that the provisions of Mo. Rev. Stat. § 570.030.3 (West 2009), could not be used to enhance a
defendant’s offenses for stealing firearms to felony stealing. The Supreme Court recently issued
a decision in State v. Smith, 522 S.W.3d 221, 231 (Mo. 2017) reversing and remanding for
resentencing as misdemeanor stealing convictions enhanced under the statute.
Petitioner’s sentence was enhanced under the same provision, and she argues that she has
been serving a 20-year sentence for conduct that, under Bazell, was merely a misdemeanor. But
for the aforementioned stealing conviction, Petitioner contends she would be eligible for release.
In light of State v. Smith, it is possible that the issues raised in Petitioner’s federal habeas petition
will be resolved by the state court.
DISCUSSION
As a matter of comity, the state courts should have the first opportunity to review federal
constitutional issues and to correct federal constitutional errors made by the state’s trial courts.
Baldwin v. Reese, 541 U.S. 27, 29 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999).
A federal habeas petitioner is thus required to exhaust all available avenues of relief in the state
courts before the federal courts will consider a claim. 28 U.S.C. § 2254(b), (c). To satisfy the
exhaustion 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.” O’Sullivan, 526 U.S. at 845. Compliance with the exhaustion requirement is
excused only if “there is an absence of available State corrective process” or “circumstances

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exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. §
2254(b)(1)(B).
Missouri state prisoners can challenge a stealing conviction in a state habeas corpus
action under Missouri Supreme Court Rule 91. State ex rel. Nixon v. Jaynes, 73 S.W.3d 623,
624 (Mo. 2002).

There is no time limit for filing such an action.

Jones v. Sachse, No.

4:11CV01310 SNLJ, 2014 WL 4410394, at *14 (E.D. Mo. Sept. 8, 2014) (citing Fletcher v.
Armontrout, 725 F. Supp. 1075, 1086 (Mo. Ct. App. 1989)).
Where such a state habeas action is filed while a petitioner’s federal habeas claim is
pending, a federal district court has the discretion to stay, rather than dismiss, a petitioner’s
habeas claim pending exhaustion of available state remedies. See Rhines v. Weber, 544 U.S.
269, 276 (2005). In determining whether a stay is appropriate, the Court may consider whether
the petitioner’s federal habeas claims will be time-barred should the matter be dismissed without
prejudice and refiled at a later time. See Akins v. Kenney, 410 F.3d 451, 455 (8th Cir. 2005);
Walker v. Houston, No. 4:07CV3208, 2007 WL 2903005, at *1 (D. Neb. Oct. 4, 2007).
Petitioner timely filed her federal habeas action. However, the statute of limitations has
since run on her claims, and she would be barred from re-filing her petition. Therefore, under
the circumstances of this case, the Court will exercise its discretion to stay the current action
rather than dismiss it for failure to exhaust state remedies.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the petition of Sheila David for a writ of habeas corpus
relief is further STAYED pending final disposition by the Missouri Supreme Court on her state
habeas corpus action.
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IT IS FURTHER ORDERED that Petitioner shall notify this Court of within 30 days of
such disposition.
IT IS FURTHER ORDERED that the Clerk of Court shall administratively close this
case pending further Order by the Court.

Dated this 26th day of September, 2017.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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