Hicks v. Hurley

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner shall show cause, in writing and no later than thirty days from the date of this Order, why this action should not be dismissed as time-barred. IT IS FURTHER ORDERED that if petitioner fails to comply with this Order, this action will be dismissed. Signed by District Judge John A. Ross on 10/8/15. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NATHAN L. HICKS,

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Petitioner,
v.
JAMES HURLEY,
Respondent.

No. 4:15CV1311 JAR

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. The petition appears to be barred by § 2254’s one-year limitations
period, and the Court will order petitioner to show cause why the petition should not be dismissed.
Background
Petitioner was found guilty by a jury of rape and sodomy on September 19, 1991. See
State v. Hicks, No. 22911-02099-01 (22nd Judicial Circuit, St. Louis City). The Circuit Court for
the City of St. Louis sentenced petitioner to life in prison on May 15, 1992. Petitioner appealed
his conviction and sentence on May 22, 1992. See State v. Hicks, ED62081 (Mo.Ct.App. 1993).
The conviction and sentence was affirmed on June 1, 1993. Id.
Petitioner filed his federal writ of habeas corpus, pursuant to 28 U.S.C. § 2254 by placing
the current application in the mail on September 4, 2015.
Discussion
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-1

(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;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from filing
by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for State post-conviction 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.
Pursuant to 28 U.S.C. § 2244(d), a petitioner has one year from the date his judgment of
conviction becomes final within which to file a petition for writ of habeas corpus. Where, as here,
a Missouri petitioner does not seek transfer to the Missouri Supreme Court after direct appeal, his
judgment becomes final upon expiration of the time within which to seek such discretionary
review, that is, fifteen days after the court of appeals issues its opinion. Gonzalez v. Thaler, 132
S.Ct. 641 (2012); Mo. S. Ct. R. 83.02. Accordingly, petitioner=s judgment of conviction became
final on June 16, 1993, fifteen days after the Missouri Court of Appeals affirmed his conviction on
direct appeal.
As a result, the Court will order petitioner to show cause why the petition should not be
dismissed as time-barred, as petitioner’s application for writ of habeas corpus was filed more than
twenty-two (22) years past the statute of limitations. See Day v. McDonough, 126 S. Ct. 1675,
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1684 (2006) (district court must give notice to petitioner before sua sponte dismissing petition as
time-barred).
Accordingly,
IT IS HEREBY ORDERED that petitioner shall show cause, in writing and no later
than thirty days from the date of this Order, why this action should not be dismissed as
time-barred.
IT IS FURTHER ORDERED that if petitioner fails to comply with this Order, this action
will be dismissed.
Dated this 8th day of October, 2015.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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