Kye v. Steele

Filing 6

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that petitioner's application for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 is DENIED AND DISMISSED as time-barred. Rule 4 of the Rules Governing Habeas Corpus P roceedings. IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability. See 28 U.S.C. § 2253. IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel is DENIED AS MOOT. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on 10/22/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CAMERON KYE,
Petitioner,
v.
TROY STEELE,
Respondent.

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No. 4:15CV1403 CDP

MEMORANDUM AND ORDER
This matter is before the Court on petitioner=s response to the order to show cause. 1
Having carefully reviewed petitioner’s response, the Court concludes that his arguments are
without merit, and that the instant action is time-barred under 28 U.S.C. § 2244.
The Petition
Petitioner pled guilty to robbery in the first degree and armed criminal action on August 27,
2012. State v. Kye, No. 1122-CR04810-01 (22nd Judicial Circuit, St. Louis City). On October 4,
2012, the Circuit Court for the City of St. Louis sentenced petitioner to four years’ imprisonment
on the armed criminal action charge and ten years’ imprisonment on the robbery charge, to run
concurrently. Id. Petitioner did not file a direct appeal.
Petitioner did file a motion to vacate his sentence, brought pursuant to Missouri Supreme
Court Rule 24.035, on February 1, 2013. Kye v. State, No. 1322-CC0293 (22nd Judicial Circuit,
St. Louis City). Petitioner voluntarily dismissed his motion to vacate on July 3, 2013. Id.

1

On October 9, 2015, the Court ordered petitioner to show cause as to why the Court should not
dismiss the instant application for writ of habeas corpus as time-barred.
1

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 7, 2015.
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. § 2244(d) a one-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 runs from the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review. In Missouri, the
time for filing a direct appeal expires ten days after the judgment is entered, as such petitioner’s
judgment of conviction became final on October 14, 2012.
Petitioner filed his motion for post-conviction relief on February 1, 2013, and it was
pending until he voluntarily dismissed his case on July 3, 2013. During the time the case was
pending, the statute was of limitations was tolled. However, the period between the finality of his
judgment and the application for post-conviction relief must be counted toward the one-year
limitations period. See Maghee v. Ault, 410 F.3d 473, 475 (8th Cir. 2005); Curtiss v. Mount
Pleasant Corr. Facility, 338 F.3d 851, 854 (8th Cir. 2003). As such, petitioner accrued
one-hundred and ten (110) days toward the limitations period during this time period.
Petitioner again accrued days toward the statute of limitations period between the time he
voluntarily dismissed his motion to vacate and when he filed the instant application for habeas
corpus in this Court, on September 7, 2015, which amounted to seven-hundred and ninety-six days
(796). Altogether, petitioner’s application for habeas corpus was nine-hundred and six days (906)
late, or more than two years and four months past its due date.
2

Petitioner argues that his untimely filing should be exempt from the statute of limitations
because it was not until some later, undisclosed date he uncovered a “jurisdictional defect during
his state criminal proceedings warranting habeas corpus review.” Namely, petitioner argues that
the District Court has original jurisdiction over all “Admiralty and Maritime” cases.
Petitioner has not explained to the Court how or why he believes his criminal charges of
robbery and armed criminal action fall under this Court’s “Admiralty” or “Maritime” jurisdiction.
Petitioner has also failed to explain how his alleged “mistaken belief,” allows for equitable tolling
in this instance or how it excuses him from the statute of limitations. See Preston v. Iowa, 221
F.3d 1343 (8th Cir. 2000) (refusing to apply equitable tolling in the case of an unrepresented
prisoner alleging a lack of legal knowledge or resources). The Court assures petitioner that his
habeas action does not fall under Admiralty or Maritime law, and that under the confines of habeas
corpus review, see 28 U.S.C. § 2244, his petition is untimely in this Court. As petitioner has
failed to give an equitable reason why his untimeliness should be excused, the Court must dismiss
the petition in this instance.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s application for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254 is DENIED AND DISMISSED as time-barred. Rule 4 of
the Rules Governing Habeas Corpus Proceedings.
IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability.
See 28 U.S.C. § 2253.

3

IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel is
DENIED AS MOOT.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 22nd day of October, 2015.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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