Grigsby v. Harris

Filing 3

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Clerk shall mail to Grigsby a motion for leave to proceed in forma pauperis form for use in § 2254 cases.IT IS FURTHER ORDERED that Grigsby shall either submit his completed in formapauperis for m or pay the $5 filing fee within twenty-one days of the date of this Order. IT IS FURTHER ORDERED that within twenty-one days of this Order Grigsby shall show cause why the instant petition should not be dismissed for failure to exhaust available state remedies. Response to Court due by 11/27/2014. Signed by Magistrate Judge Nannette A. Baker on 11/6/14. (CLA) cc: copy mailed to petitioner

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DUSTIN MATTHEW GRIGSBY,
Petitioner,
v.
BILL HARRIS,
Respondent,

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No. 4:14CV1849 NAB

MEMORANDUM AND ORDER
Dustin Grigsby petitions the Court for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Grigsby has neither paid the filing fee nor submitted a motion for leave to proceed in
forma pauperis. Additionally, it appears from the face of the petition that Grigsby has not
exhausted his available state court remedies.
Before he may proceed with this action, Grigsby must either pay the $5 filing fee or, if he
cannot afford the fee, file a motion for leave to proceed in forma pauperis. The Court will direct
the Clerk to provide Grigsby with the Court’s in forma pauperis form. And the Court will
require him either to pay the fee or to complete the form within twenty-one days from the date of
this Order.
The Court cannot grant Grigsby’s petition for writ of habeas corpus unless he “has
exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); Day v.
McDonough, 547 U.S. 198, 205 (2006) (describing exhaustion requirement as a “threshold
barrier[]” to habeas relief.). However, the exhaustion requirement may be met if “there are no
‘currently available, non-futile state remedies’, through which the petitioner can present his

claim.” Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988) (quoting Laws v. Armontrout,
834 F.2d 1401, 1412 (8th Cir. 1987)).
On April 22, 2014, Grigsby pled guilty to charges of first and second degree arson.
Missouri v. Grigsby, 13L6-CR01071-01 (Lincoln County). On August 21, 2014, the state court
sentenced him to a total prison term of fifteen years. Id. Grigsby did not appeal, and he has not
filed a motion for postconviction relief under Rule 24.035 of the Missouri Supreme Court Rules.
In Missouri, a prisoner seeking relief on the ground that his “conviction or sentenced
imposed violates the . . . constitution of the United States . . . may seek relief in the sentencing
court pursuant to the provisions of . . . Rule 24.035.” Mo. S. Ct. R. 24.035(a). “Rule 24.035
provides the exclusive procedure by which such person may seek relief in the sentencing court
. . .” Id. When no appeal has been taken, a Missouri prisoner has 180 days from the date he was
taken into custody by the Department of Corrections to file his Rule 24.035 motion. Mo. S. Ct.
R. 24.035(b).
It appears that Grigsby is well within the time limit for filing a Rule 24.035 motion.
Therefore, he has not exhausted available state remedies, and the petition is subject to summary
dismissal under Rule 4 of the Rules Governing § 2254 Cases.
Grigsby states that he brought his petition in this Court first because he would not receive
a fair trial in the state courts. Grigsby is cautioned that if he elects not to pursue his available
state remedies, his federal claims may be procedurally defaulted. To avoid defaulting on a claim,
a petitioner seeking habeas review must have fairly presented the substance of the claim to the
state courts, thereby affording the state courts a fair opportunity to apply controlling legal
principles to the facts bearing on the claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir.
2003). A claim has been fairly presented when a petitioner has properly raised the same factual

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grounds and legal theories in the state courts that he is attempting to raise in his federal petition.
Id. at 1021. Claims that have not been fairly presented to the state courts are procedurally
defaulted. Id. at 1022. For that reason, Grigsby may wish to file a Rule 24.035 motion in the
sentencing court before pursuing his federal habeas claims in this Court.
Accordingly,
IT IS HEREBY ORDERED that the Clerk shall mail to Grigsby a motion for leave to
proceed in forma pauperis form for use in § 2254 cases.
IT IS FURTHER ORDERED that Grigsby shall either submit his completed in forma
pauperis form or pay the $5 filing fee within twenty-one days of the date of this Order.
IT IS FURTHER ORDERED that within twenty-one days of this Order Grigsby shall
show cause why the instant petition should not be dismissed for failure to exhaust available state
remedies.
Dated this 6th day of November, 2014.

Nannette A. Baker___________________
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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