Wagner v. Lombardi

Filing 3

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Wagner must show cause, no later than October 14, 2015, why this action should not be summarily dismissed as time-barred. Signed by Magistrate Judge Thomas C. Mummert, III on 9/24/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOSEPH WAGNER,
Petitioner,
v.
GEORGE LOMBARDI,
Respondent,

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No. 4:15CV1438 TCM

MEMORANDUM AND ORDER
Joseph Wagner petitions the Court for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. The petition appears to be barred by the limitations period, and the Court
will require Wagner to show cause why it should not be dismissed.
Wagner challenges several sentences imposed in cases Missouri v. Wagner, 07U1CR00261-01, and Missouri v. Wagner, 11AU-CR00420-01. The sentences were imposed
on several dates, and were sometimes imposed on the same dates. The latest sentence, of
fifteen years’ imprisonment, was issued on February 4, 2013.
Wagner filed a petition for writ of prohibition in the Missouri Court of Appeals for
the Eastern District on May, 22, 2013. Ex rel. Wagner v. Dalton, No. ED99978 (Mo. Ct.
App.). The court dismissed the petition without discussion on August 12, 2013. He then
filed a petition for writ of prohibition in the Missouri Supreme Court on October 8, 2013,
which the court summarily denied on November 26, 2013. Ex rel. Wagner v. Dalton, No.
SC93714 (Mo. banc).

Wagner next filed a petition for writ of habeas corpus in the Missouri Court of
Appeals for the Western District on June 12, 2015, which the court summarily denied on
June 16, 2012. In re Wagner v. Cassady, No. WD 78706 (Mo. Ct. App).
Wagner filed the instant petition on approximately September 14, 2014. In it, he
argues that a conspiracy existed between the prosecutor, the trial court, the public
defender, and the appellate court to falsely accuse him and imprison him for a crime he
did not commit.
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-(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;
...
(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.
Assuming the judgment became final on February 4, 2013, which is the last date a
sentence was imposed; and assuming the limitations period was tolled during each of
Wagner’s post-conviction petitions, which is unlikely; then well over one year passed
before Wagner filed his § 2254 petition in this Court. Therefore, it appears that the
petition is barred by the limitations period, and the Court will order Wagner to show

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cause why the petition should not be summarily dismissed as time-barred. See 28 U.S.C.
§ 2254, Rule 4; Day v. McDonough, 126 S. Ct. 1675, 1684 (2006).
Accordingly,
IT IS HEREBY ORDERED that Wagner must show cause, no later than
October 14, 2015, why this action should not be summarily dismissed as time-barred.
Dated this 24th day of September, 2015.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE

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