Rousan v. Cassady et al
Filing
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MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that this action is STAYED and administratively closed until Petitioner William Brent Rousan exhausts his state court remedies. Rousan must pursue state court remedies within 30 days after this stay is entered and return to federal court within 30 days after state court exhaustion is completed. Signed by Magistrate Judge Shirley Padmore Mensah on 8/19/2019. (NEP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM BRENT ROUSAN,
Petitioner,
v.
JENNIFER SACHSE,
Respondent.
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Case No. 4:16-CV-01502-SPM
MEMORANDUM AND ORDER
This matter is before the Court on Petitioner William Brent Rousan’s (“Rousan” or
“Petitioner”) amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 24).
Respondent filed a response to the Petition. (Doc. 36). The parties have consented to the
jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1).
(Doc. 5). For the reasons set forth below, Rousan’s petition for writ of habeas corpus will be stayed
to allow Petitioner to exhaust all available state court remedies.
I.
Background
Rousan is currently an inmate at the Jefferson City Correctional Center in Jefferson City,
Missouri. On March 4, 1996, Rousan was sentenced to two consecutive terms of life imprisonment
without eligibility for parole on two counts of first degree murder, after pleading guilty in exchange
for a waiver of the death penalty. Rousan was sixteen years old at the time he committed the
offenses.
Rousan filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule
24.035, in which he alleged ineffective assistance of counsel and attempted to withdraw his guilty
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plea. (Doc. 24-1 at 3). That motion was denied without a hearing, and the motion court’s ruling
was affirmed on appeal. Id. Subsequently, Rousan filed a pro se direct appeal in 2005, seeking to
withdraw his guilty plea, which was dismissed as untimely on February 6, 2006. Id. Rousan then
filed a motion for a writ of habeas corpus in 2012, in the Circuit Court of Cole County, which was
denied on April 23, 2012. Id.
On June 25, 2012, the United States Supreme Court issued its opinion in Miller v. Alabama,
567 U.S. 460 (2012). In Miller, the Supreme Court held that the Eighth Amendment prohibits a
sentencing scheme that mandates life in prison without the possibility of parole for juvenile
homicide offenders. Id. at 479. The Court reasoned that “[m]andatory life without parole for a
juvenile precludes consideration of his chronological age and its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and consequences,” the “family and home
environment that surrounds him—and from which he cannot usually extricate himself—no matter
how brutal or dysfunctional,” the “circumstances of the homicide offense,” and “the possibility of
rehabilitation[.]” Id. at 477-78.
On March 12, 2013, Petitioner filed a petition for writ of habeas corpus in the Missouri
Supreme Court, alleging that his sentence was unconstitutional in light of Miller. On January 27,
2016, while Rousan’s petition was still pending, the United States Supreme Court decided the case
of Montgomery v. Louisiana, 136 S. Ct. 718 (2016), holding that the rule of Miller must be
retroactively applied in collateral cases to persons sentenced to mandatory life without parole for
juvenile sentences before Miller was decided. Id. at 732. The Court clarified, however, that this
retroactive application “does not require States to relitigate sentences, let alone convictions, in
every case where a juvenile offender received mandatory life without parole.” Id. Rather, “[a] State
may remedy a Miller violation by permitting juvenile homicide offenders to be considered for
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parole, rather than by resentencing them.” Id. Regarding this remedy, the Court cited a Wyoming
statute that allows a juvenile convicted of homicide to be eligible for parole after 25 years
incarceration. Id. (citing Wyo. Stat. Ann. § 6-10-301(c) (2013)). The Court specifically held that
“allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected
only transient immaturity—and who have since matured—will not be forced to serve a
disproportionate sentence in violation of the Eighth Amendment.” Id.
On March 15, 2016, the Missouri Supreme Court issued an order in Petitioner’s habeas
case, as well as all other similarly situated cases, stating that the Missouri General Assembly had
yet to enact a constitutionally valid sentencing provision in accordance with Miller and
Montgomery. Therefore, the Missouri Supreme Court granted Rousan’s petition in part and
ordered that he (and those similarly situated) would be eligible to apply for parole after 25 years’
imprisonment on their sentences of life without parole unless their sentences were otherwise
brought into conformity with Miller and Montgomery by action of the governor or enactment of
the legislature.
On July 13, 2016, the Governor signed into law Missouri Senate Bill No. 590, 98th
General Assembly, which states, in relevant part:
1. (1) Any person sentenced to a term of imprisonment for life without
eligibility for parole before August 28, 2016, who was under eighteen
years of age at the time of the commission of the offense or offenses,
may submit to the parole board a petition for a review of his or her
sentence . . . after serving twenty-five years of incarceration.
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4. The parole board shall hold a hearing and determine if the
defendant shall be granted parole.
(codified at Mo. Rev. Stat. § 558.047).
In light of Mo. Rev. Stat. § 558.047, the Missouri Supreme Court issued an order on July
19, 2016, vacating its March 15 order, overruling as moot the motions for rehearing or resentencing
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filed by Rousan and others similarly situated, and denying the pending petitions for state habeas
corpus.
Because Rousan is serving two consecutive sentences of life without parole, he is not
eligible to petition for parole until he has served twenty-five years on each sentence, a total of fifty
years, at which time Rousan will be 69 years of age. (Doc. 36 at 2).
On October 14, 2016, Rousan filed a pro se petition for writ of habeas corpus in this Court,
raising one ground for relief: that Mo. Rev. Stat. § 558.047 is unconstitutional as applied to him
because he will not be eligible for parole until he is 69 years old, in violation of his Eighth
Amendment right to be free from cruel and unusual punishment. (Doc. 1). Subsequently, this Court
appointed counsel to represent Rousan, after which Rousan submitted the amended petition
currently before the Court, in which he asserts the same sole ground for relief.
On February 28, 2017, Rousan filed a pro se writ for habeas corpus in the Missouri
Supreme Court pursuant to Missouri Supreme Court Rule 91, in which he similarly asserted that
Mo. Rev. Stat. § 558.047 is unconstitutional as applied to him. (Doc. 24-1 at 5). The Missouri
Supreme Court denied the petition without prejudice pursuant to Missouri Supreme Court Rule
84.22(a), which states, “No original remedial writ shall be issued by an appellate court in any case
wherein adequate relief can be afforded by an appeal or by application for such writ to a lower
court.”
Respondent, in the response filed on August 13, 2018, asserts that Rousan’s sole ground
for relief is not properly before the Court because it has not been exhausted in state court. (Doc.
36). Although given the opportunity, Rousan did not reply to Respondent’s response. In his
amended petition, though, Rousan asserted that his claim has been fairly presented to the state
court and is exhausted.
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II.
Discussion
A.
Exhaustion
“In a habeas setting, a federal court is bound by the ‘Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA] to exercise only limited and deferential review of underlying state
court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003); 28 U.S.C. § 2254. Under
this standard, a federal court may not grant relief to a state prisoner unless the state court’s
adjudication of a claim “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States,” or “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254.
A state prisoner must exhaust available state remedies before obtaining federal habeas
relief. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Section 2254(b)(1)(A). This requires that
a prisoner “give state courts a fair opportunity to act on their claims.” O’Sullivan, 526 U.S. at 844;
accord Dansby v. Norris, 682 F.3d 711, 722 (8th Cir. 2012). “The 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, 178–79 (2001). “The exhaustion rule promotes
comity in that ‘it would be unseemly in our dual system of government for a federal district court
to upset a state court conviction without an opportunity to the state courts to correct a constitutional
violation.’ ” Id. at 179 (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)). 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 “still open to the habeas
applicant at the time he files his application in federal court.” Humphrey v. Cady, 405 U.S. 504,
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516 (1972). A petitioner satisfies the exhaustion requirement by showing either that he “made a
fair presentation of his claims to the state courts or that he has no other presently available state
remedies to pursue.” Gentry v. Lansdown, 175 F.3d 1082, 1083 (8th Cir. 1999); accord Meador v.
Branson, 688 F.3d 433, 435 (8th Cir. 2012). The burden is on the Petitioner to show that all
available state remedies have been exhausted or that exceptional circumstances exist. Carmichael
v. White, 163 F.3d 1044, 1045 (8th Cir. 1998).
After careful review of the record, the Court concludes that Rousan’s claim has not been
properly raised before the state courts and therefore, Petitioner has not met his burden—his claim
remains unexhausted and he has not shown that exceptional circumstances exist. However, “if no
state court remedy is available for [an] unexhausted claim—that is, if resort to the state courts
would be futile—then the exhaustion requirement in § 2254(b) may yet be satisfied. Armstrong v.
Iowa, 418 F.3d 924, 926 (8th Cir. 2005). However, as further discussed below, the Court finds that
Petitioner still has non-futile state court remedies he may pursue.
In the context of Missouri habeas law, although a “post-conviction motion[ ] for relief [is]
designed to provide a single unitary, post-conviction remedy, to be used in place of other remedies,
including the writ of habeas corpus,” subsequent state habeas relief is not barred in certain
circumstances. State ex rel. Laughlin v. Bowersox, 318 S.W.3d 695, 701 (Mo. 2010) (en banc)
(internal quotation marks omitted). Specifically, state habeas relief may be available “when the
petitioner can demonstrate: (1) a claim of actual innocence or (2) a jurisdictional defect or (3)(a)
that the procedural defect was caused by something external to the defense—that is, a cause for
which the defense is not responsible—and (b) prejudice resulted from the underlying error that
worked to the petitioner's actual and substantial disadvantage.” State ex rel. Zinna v. Steele, 301
S.W.3d 510, 516–17 (Mo. 2010) (en banc) (quoting Brown v. State, 66 S.W.3d 721, 731 (Mo.
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2002) (en banc)). A petitioner can also seek state habeas relief in other rare circumstances—such
as when a defendant is impeded from complying with state post-conviction rules through no fault
of his own, or, as is the case here, when the basis of a claim was not earlier available. Storey v.
Roper, 603 F.3d 507, 523 (8th Cir. 2010)), cert. denied, 562 U.S. 1259 (2011).
Habeas corpus proceedings in Missouri state court are governed by Missouri Supreme
Court Rule 91. There is no time limitation for the filing of a state habeas petition under Missouri
Supreme Court Rule 91. Davis v. Purkett, 296 F.Supp.2d 1027, 1030 (E.D. Mo. 2003); Jones v.
Sachse, No. 4:11CV01310 SNLJ, 2014 WL 4410394, at *14 (E.D. Mo. Sept. 8, 2014). A Rule 91
habeas petition must first be filed in the circuit or associate circuit court of the county where the
petitioner is in custody. Mo. S. Ct. R. 91.01(a). See Romano v. Wyrick, 681 F.2d 555, 556-57 (8th
Cir. 1982); see also Brown v. Missouri Bd. of Prob. & Parole, 727 F.Supp. 524, 531 (W.D. Mo.
1989). Thereafter, to be considered exhausted for purposes of federal habeas review, the claims
must be presented in a Rule 91 state habeas petition to either the Missouri Court of Appeals or the
Missouri Supreme Court. Romano, 681 F.2d at 556-57.
While, “[u]nder Missouri law, a Rule 91 state habeas action may not be used to present
claims which could have been raised on direct appeal or in a motion under Rule [24.035],” that is
clearly not the case here, as Rousan could not have raised his claims prior to the enactment of Mo.
Rev. Stat. § 558.047. Mercer v. Steele, No. 4:11CV02038 AGF, 2012 WL 2684973, at *1 (E.D.
Mo. July 6, 2012). Therefore, in light of the circumstances of this case, there appears to be a
remedy now available to Rousan by which he may pursue his claim in state court, namely, a Rule
91 state habeas petition filed in the appropriate circuit court. Indeed, the Missouri Supreme Court
recently dismissed, pursuant to Rule 84.22(a), two habeas petitions raising similar issues as the
Petitioner, and those petitioners subsequently filed new habeas petitions pursuant to Rule 91 in the
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proper circuit court. See Davis v. Bowersox, Case No. SC96014 (May 30, 2017); Davis. v.
Bowersox, et al., Case No. 16–00246–CV–W–RK (Jun. 6, 2017 ECF No. 25); Davis v. Norman,
Case No. 17TE–CC00207 (Circuit Court of Texas County, Missouri) (filed June 3, 2017) and Hack
v. Cassady, Case No. SC95948 (May 30, 2017); Hack v. Cassady, Case No. 4:16–CV004089–W–
ODS (Jun. 7, 2017 ECF No. 26); Hack v. Norman, Case No. 17TE–CC00206 (filed June 3, 2017).
Rousan is confronted with that precise situation. He filed a state habeas petition with the
Missouri Supreme Court under Rule 91, and the Missouri Supreme Court denied it without
prejudice under Rule 84.22(a), because Rousan should have brought his habeas claim at the circuit
court level in the first instance. Rousan may now bring a Rule 91 habeas petition before the circuit
court, thus providing the state courts with an opportunity to determine the merits of his claim. See
Coleman v. Thompson, 501 U.S. 722, 731 (1991) (The principles of comity and federalism urge
that the state be given “the first opportunity to address and correct alleged violations of state
prisoner’s federal rights.”); see also Rhines v. Weber, 544 U.S. 269, 273 (2005) (“[T]he interests
of comity and federalism dictate that state courts must have the first opportunity to decide a
petitioner’s claims.”). Furthermore, Rousan’s efforts at the state level are demonstrably non-futile,
as at least one Rule 91 state habeas petition in Missouri has been granted under Miller and
Montgomery despite the enactment of Mo. Rev. Stat. § 558.047. See Edwards v. Steele, 533 S.W.3d
238, 244 (Mo. Ct. App. 2017) (holding that a sentence of mandatory life without the possibility of
parole for 50 years imposed on a juvenile defendant violated Miller and Montgomery).
B.
Stay
The Court now turns to concerns regarding whether Petitioner would have time remaining
to file another federal habeas petition under the statute of limitations period prescribed in 28 U.S.C.
§ 2244(d) after exhausting his remedies in state court. Section 2254 petitions are subject to a one-
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year limitation period pursuant to 28 U.S.C. § 2244(d). This time period has already elapsed, as
Petitioner has not yet brought a Rule 91 petition before the proper state circuit court, and Mo. Rev.
Stat. § 558.047 was enacted on July 17, 2016. The Eighth Circuit has not yet addressed whether a
federal application for habeas corpus relief may be subject to equitable tolling where the initial
federal petition is timely, but is dismissed on exhaustion grounds, and a second petition is late due
to additional state court proceedings. But see York v. Galetka, 314 F.3d 522, 524 (10th Cir. 2003)
(allowing equitable tolling). However, a district court may, in “limited circumstances” issue a stay
where it would be “a proper exercise of discretion,” and the petitioner has “good cause for [his]
failure to exhaust his claims first in state court.” Rhines, 544 U.S. at 275-77.
In five recent federal habeas cases, all brought by petitioners with Miller/Montgomery
claims in circumstances similar to this case, the district court stayed the habeas action to avoid a
situation where AEDPA’s one-year statute of limitations would be expired despite the petitioners’
diligence. See Seddens v. Wallace, No. 4:16-CV-00449-AGF, 2019 WL 2327661, at *3 (E.D. Mo.
May 31, 2019); Stewart v. Bowersox, No. 4:16-CV-001240-AGF, 2019 WL 2173448, at *4 (E.D.
Mo. May 20, 2019); Williams v. Precythe, No. 4:16-CV-393 RWS, 2019 WL 1380042, at *3 (E.D.
Mo. Mar. 27, 2019); Davis v. Bowersox, No. 16-00246-CV-W-RK, 2017 WL 379463, at *4 (W.D.
Mo. Jan. 26, 2017); Hack v. Cassady, No. 16-04089-CV-W-ODS, 2016 WL 6986712, at *2 (W.D.
Mo. Nov. 28, 2016). Additionally, in Williams and Stewart, the Court granted the stay despite the
lack of a “mixed” petition, i.e., a petition containing both exhausted and unexhausted claims. See
Stewart, 2019 WL 2173448, at *4; Williams, 2019 WL 1380042, at *3 (finding that although the
holding in Rhines was made “in the context of ‘mixed’ petitions,” that holding is “not made
exclusive to the context of mixed petitions”).
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The Court finds that Rousan’s situation is one of the limited circumstances where a stay is
appropriate. The absence of a stay would ensure that AEDPA’s statute of limitations runs before
Petitioner can return to federal court. Hack v. Cassady, No. 16-04089-CV-W-ODS, 2016 WL
6986712, at *2 (W.D. Mo. Nov. 28, 2016). Thus the Court will enter a stay in this case and direct
Petitioner to pursue state remedies within a brief interval. See Williams, 2019 WL 1380042, at *3
(directing Petitioner to pursue state remedies within 30 days after the stay is entered and return to
federal court within 30 days after state court exhaustion is completed).
IV.
Conclusion
Accordingly,
IT IS HEREBY ORDERED that this action is STAYED and administratively closed until
Petitioner William Brent Rousan exhausts his state court remedies. Rousan must pursue state court
remedies within 30 days after this stay is entered and return to federal court within 30 days after
state court exhaustion is completed.
Dated this 19th day of August, 2019.
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
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