Starkey v. Spackler

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner shall show cause, within thirty (30) days of this Memorandum and Order, why his application for writ of habeas corpus shall not be dismissed for failure to fully exhaust his state court remedies.. Signed by District Judge Rodney W. Sippel on 1/16/15. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARK A. STARKEY,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
HEATH SPACKLER,
Respondent.

No. 4:15CV131 RWS

MEMORANDUM AND ORDER
This matter is before the Court on petitioner=s application for writ of habeas corpus
pursuant to 28 U.S.C. ' 2254. Because it appears that petitioner has not fully presented his
claims to the Missouri courts, petitioner will be required to show cause why his petition should
not be dismissed for failure to fully exhaust available state remedies. 28 U.S.C. ' 2254(b)(1)(A);
Rule 4 of the Rules Governing Habeas Corpus Cases Under ' 2254.
Background
Petitioner, an inmate at Western Missouri Correctional Center, seeks relief pursuant to §
2254. Petitioner states that on September 7, 2011, following a jury trial, he was sentenced to
four years on each of four counts of Aggravated Stalking in St. Louis County Circuit Court. 1
The sentences were to run consecutively.

See State v. Starkey, No. 10SL-CR02334-01.

After his conviction and sentence, petitioner filed a plethora of motions in various
Missouri courts seeking to overturn his conviction and sentence. He first filed various post-trial
motions in his criminal action.

1

On September 9, 2011, petitioner filed a motion for

Petitioner was originally charged in the Circuit Court of Butler County, Missouri; however, the
trial court granted his motion for change of venue, and the matter was moved for trial to St. Louis
County, Missouri.

post-conviction relief with the trial court, pursuant to Rule 29.15.

See Starkey v. State, No.

11SL-CC03846. The Court dismissed the petition without prejudice on October 6, 2011, as his
filing was clearly premature.2
Petitioner filed a direct appeal of his conviction on September 14, 2011. His conviction
and sentence were affirmed on October 2, 2012.

See State v. Starkey, 380 S.W.3d 636

(Mo.Ct.App. 2012). Petitioner filed both a motion to recall the mandate and a motion for
transfer to the Missouri Supreme Court. Both motions were denied.
On June 11, 2012, petitioner filed an application for writ of habeas corpus in St. Louis
County Court. The application for writ was denied on June 13, 2012.

See Starkey v. Wallace,

No. 12SL-CC02212.
On October 18, 2012, petitioner filed a motion for post-conviction relief, pursuant to Rule
29.15, in St. Louis County Court. Petitioner’s motion was denied on December 10, 2013.
Starkey v. State, No. 12SL-CC04163.
appeal.

See

On January 16, 2014, petitioner filed his post-conviction

See Starkey v. State, No. ED101148. This matter is fully briefed and still awaiting

review before the Eastern District Court of Appeals.
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),
2

Petitioner has filed a myriad of motions before several different courts seeking writs of habeas
corpus, writs of prohibition and other collateral relief. Because none of these motions appear
salient to the exhaustion issue in this instance, the Court will not take the time to list them here.
2

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 . . .
In this case, it is apparent that the Missouri Appellate Court has not yet ruled on
petitioner’s post-conviction appeal. As a result, petitioner=s available state remedies have not yet
been exhausted, and the petition is subject to dismissal without prejudice.
Under the aforementioned circumstances, petitioner will be required to show cause, within
thirty (30) days of the date of this Memorandum and Order, why his petition should not be
dismissed due to petitioner=s failure to fully exhaust his state court remedies.
Accordingly,
IT IS HEREBY ORDERED that petitioner shall show cause, within thirty (30) days of
this Memorandum and Order, why his application for writ of habeas corpus shall not be dismissed
for failure to fully exhaust his state court remedies.
Dated this 16th day of January, 2015.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

3