McGee v. Stringer

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner=s motion for leave to proceed in forma pauperis [#2] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall docket this case as Kevin D. McGee v. David Schmitt. Signed by District Judge Carol E. Jackson on 11/30/16. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN D. MCGEE,
Petitioner,
v.
DAVID SCHMITT,1
Respondent.

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No. 4:16-CV-1093 CEJ

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Kevin McGee for leave to
commence this action without payment of the required filing fee, see 28 U.S.C. §
1915(a), and application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Upon consideration of the financial information provided with the application, the
Court finds that the applicant is financially unable to pay any portion of the filing fee.
Therefore, the Court will grant petitioner leave to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915(a).
The Petition
Petitioner, who is confined at the Southeast Missouri Mental Health Center in
Farmington, Missouri, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner states that in 1988 he was convicted of third-degree misdemeanor assault
and flourishing a deadly weapon after pleading not guilty by reason of insanity in the
Circuit Court of Cape Girardeau County, Missouri.

He states that he was sentenced

on June 8, 1988 and that he did not appeal the judgment. As grounds for relief,
1

Petitioner has named the State of Missouri as respondent. When a habeas petitioner is in
custody due to the state action he is attacking, the proper respondent is the state officer having
custody of the petitioner. See Rule 2 of the Rules Governing ' 2254 Cases. In this case, the
proper respondent is David Schmitt,, the Chief Operating Officer of the Southeast Missouri
Mental Health Center where petitioner is confined.

petitioner claims that his attorney coerced him into entering the plea by falsely
representing that petitioner would only spend six months in a state hospital.
Discussion
Both 28 U.S.C. § 2243 and Rule 4 of the Rules Governing § 2254 Cases in the
United States District Courts provide that a district court may summarily dismiss a
petition for writ of habeas corpus if it plainly appears that the petitioner is not entitled
to relief. A review of the instant petition indicates that it is time barred under 28
U.S.C. § 2244(d)(1), and is subject to summary dismissal.
The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a
one-year period of limitation for habeas corpus petitions that begins to run, as
relevant here, from Athe date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.@

28 U.S.C '

2241(d)(1)(A). Petitioner was sentenced on June 8, 1988 and did not appeal the
judgment. Therefore, under § 2244(d)(1)(A) the one-year limitation period began to
run—at the latest— thirty days from June 8, 1988.
345 (8th Cir. 1998); Mo. Sup. Ct. R. 30.01(d).

Cf. Smith v. Bowersox, 159 F.3d
Because the judgment petitioner

wishes to attack became final before the enactment of the AEDPA on April 24, 1996,
he is entitled to a one year grace period which ended on April 24, 1997. See Ford v.
Bowersox, 178 F.3d 522, 523 (8th Cir. 1999). The instant petition was filed more than
nineteen years after expiration of the grace period. Therefore, it is untimely.
To the extent that petitioner is seeking conditional or unconditional release, his
habeas petition is subject to dismissal for failure to exhaust available state remedies.
Under Missouri Revised Statutes § 552.040, a committed person can only
petition under § 2554 for either conditional or unconditional release. Petitioner states
that he has sought both remedies at one time. However, he has not indicated which

remedy was most recently sought and denied. Therefore, in an abundance of caution,
the Court will address both avenues for relief in Missouri.
Conditional release is for a limited duration and is qualified by reasonable
conditions. See § 552.040.10(3). To obtain conditional release a petitioner must
prove, by clear and convincing evidence, that he Ais not likely to be dangerous to
others while on conditional release.@ § 552.040.12(6). A conditional release implies
that despite a mental disease or disorder, the committed person is eligible for limited
freedom from a mental health facility, subject to certain conditions. Greeno v. State,
59 S.W.3d 500, 504 (Mo. banc 2001).
Unconditional release, by contrast, can be granted only if the petitioner shows
Aby clear and convincing evidence that he does not have, and in the reasonable future
is not likely to have, a mental disease or defect rendering him dangerous to the safety
of himself or others.@ ' 552.040.7. Thus, Missouri places the burden on the insanity
acquittee to prove that he qualifies for conditional or unconditional release by clear
and convincing evidence. 2 Grass v. Reitz, 643 F.3d 579, 581 (8th Cir.2011);
Mo.Rev.Stat. §§ 552.040.7(6) & 552.040.12(6); State v. Rottinghaus, 310 S.W.3d
319, 324 (Mo.Ct.App.2010).

2

When a Missouri court accepts a plea of not guilty by reason of mental disease or defect, the
defendant is deemed acquitted of the charges on the ground of mental disease or defect excluding
responsibility. Taylor v. State, 262 S.W.3d 231, 238 (Mo. banc 2008) (AIf defendant succeeds on
his affirmative defense, he is absolved of criminal responsibility.@). Thus, a defendant's success in
arguing that he or she is not guilty by reason of mental disease or defect effectively acquits the
defendant of the charged crime. Those individuals are commonly referred to as Ainsanity
acquittees.@ See Grass, 643 F.3d at 581; State v. Revels, 13 S.W.3d 293, 294 (Mo. banc 2000).

Clear and convincing evidence is Aevidence that instantly tilts the scales in the
affirmative when weighed against the evidence in opposition so that the court is left
with the abiding conviction that the evidence is true.@ Greeno, 59 S.W.3d at 505
(internal citations omitted). When an individual is acquitted by reason of mental
disease or defect for a dangerous felony, in order to grant conditional or unconditional
release, the court also must find that the individual Ais not now and is not likely in the
reasonable future to commit another violent crime@ and Ais aware of the nature of the
violent crime committed ... and presently possesses the capacity to appreciate the
criminality of the violent crime ... and ... to conform [his or her] conduct to the
requirements of law in the future.@ Mo.Rev.Stat. § 552.040.20. The denial of a petition
for either conditional or unconditional release is Awithout prejudice to the filing of
another application after the expiration of one year.@ § 552.040.13, 8.
Title 28 U.S.C. ' 2254(b)(1)(A) prohibits habeas relief on behalf of a person in
state custody unless that person has Aexhausted the remedies available in the courts
of the State.@ AThe exhaustion requirement of § 2254(b) ensures that the state courts
have the opportunity fully to consider federal-law challenges to a state custodial
judgment before the lower federal courts may entertain a collateral attack upon that
judgment.@ Duncan v. Walker, 533 U.S. 167, 178B79 (2001). The requirement
prevents a federal court from granting a habeas petition based on a constitutional
violation that could be redressed adequately by pursuing an avenue of state relief Astill
open to the habeas applicant at the time he files his application in federal court.@
Humphrey v. Cady, 405 U.S. 504, 516 (1972).
Although most of the cases defining the contours of the exhaustion requirement
arise from challenges to state custody following criminal conviction, the Supreme
Court's holding that exhaustion requires only a fair presentation that is satisfied Aby

invoking one complete round of the State's established appellate review process,@
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), applies with equal force when a
habeas petitioner seeks to challenge state custody pursuant to a civil commitment,
see Beaulieu v. Minnesota, 583 F.3d 570, 575 (8th Cir.2009). ATo satisfy the
exhaustion requirement, a person confined in the Missouri State Hospital must apply
for release under section 552.040 before filing a petition for a writ of habeas corpus.
Additionally, if the application for release is denied, the confined person must appeal
to the Missouri Court of Appeals.@ Kolocotronis v. Holcomb, 925 F.2d 278, 279 (8th
Cir.1991) (internal citation omitted).3
This Court has reviewed the docket on Missouri Case.Net and it does not appear
that petitioner has applied to any state court for release under § 552.040.

Petitioner

has not exhausted available state remedies and is therefore not entitled to habeas
relief. The petition will be dismissed, and the Court will not issue a certificate of
appealability.
Accordingly,

3

Kolocotronis goes on to hold that Aif unsuccessful [in the Missouri Court of Appeals], [the
confined person must] apply for transfer to the Missouri Supreme Court,@ id., based on Jones v.
Ritterbusch, 548 F.Supp. 89, 90 (W.D.Mo.1982). In 2001, after both Kolocotronis and Jones were
decided, the Missouri Supreme Court amended Supreme Court Rule 83.04 to provide that
A[t]ransfer by this Court is an extraordinary remedy that is not part of the standard review process
for purposes of federal habeas corpus review.@ See Randolph v. Kemna, 276 F.3d 401, 404 (8th
Cir.2002). Following this amendment, the Eighth Circuit has held that it is not necessary to apply
for transfer to the Missouri Supreme Court to exhaust state remedies for purposes of § 2254. See
id.

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IT IS HEREBY ORDERED that petitioner=s motion for leave to proceed in
forma pauperis [#2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall docket this case as Kevin D.
McGee v. David Schmitt.

Dated this 30th day of November, 2016.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE

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