Kniest v. Cassady

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner must show cause, no later than thirty (30) days from the date of this Order, why the petition should not be dismissed as untimely.. Signed by District Judge John A. Ross on 5/7/15. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GEORGE M. KNIEST,
Petitioner,
v.
JAY CASSADY,
Respondent,

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No. 4: 15CV708 JAR

MEMORANDUM AND ORDER
George Kniest petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. He says he has "new evidence," which was presented to the state court during his
resentencing.

The petition is untimely by several years.

As a result, the Court will direct

petitioner to show cause why the petition should not be dismissed.
On January 10, 2002, petitioner pied guilty to first-degree assault and armed criminal
action. Missouri v. Kniest, No. 01CR612168 (St. Francois County). Petitioner was sentenced to
two consecutive terms of twenty-years' imprisonment.

Petitioner filed a timely motion for

postconviction relief. Kniest v. Missouri, No. 02CV611051 (St Francois County). After granting
relief on one claim, the motion court resentenced petitioner again to two twenty-year consecutive
terms of imprisonment. Id (docket entry October 23, 2002). The Court of Appeals affirmed.

Kniest v. Missouri, 120 S.W.3d 248, No. ED82311 (Mo. Ct. App.). The docket sheet in the
criminal action shows that petitioner was resentenced again on April 16, 2004, to the 5J.IDe
sentence. Kniest, No. OICR612168. Petitioner did not appeal. Petitioner then filed successive
Rule 24.035 motions on September 5, 2006, and July 8, 2013. See Kniest v. Missouri, No. 13SF-

CC00141 (St. Francois County) (Findings of Fact, Conclusions of Law and J. dated July 17,
2013). Both motions were dismissed as successive. Id.
Pursuant to 28 U.S.C. § 2244(d), a petitioner has one year from the date his judgmert of
conviction becomes final within which to file a petition for writ of habeas corpus. Properly filed
motions for postconviction relief toll the limitations period. Because petitioner did not appeal
from his resentencing on April 16, 2004, his judgment became final, at the latest, in 2004.
Because petitioner's subsequent motions for post-conviction relief were dismissed by the state
courts as successive, they did not toll the one-year limitations period as they were not "properly
filed." See Walker v. Norris, 436 F.3d 1026, 1030 (8th Cir. 2006). Therefore, the limitations
period appears to have expired sometime in 2005, and the petition appears to be time-barred.
Moreover, petitioner does not allege that he actually has "new" evidence of his actual
innocence.

He says that he introduced the evidence during his resentencing.

Under these

circumstances he is not entitled to circumvent the limitations period.
Accordingly,
IT IS HEREBY ORDERED that petitioner must show cause, no later than thirty (30)
days from the date of this Order, why the petition should not be dismissed as untimely.
Dated this 7th day of May, 2015.

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A. ROSS
ITED STATES DISTRICT JUDGE

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