Nethery v. Lewis

Filing 7

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that, no later than twenty-one (21) days from the date of this Order, petitioner must show cause why this action should not be dismissed. IT IS FURTHER ORDERED that if petitioner does not comply with this Order, the Court will dismiss this action without further proceedings. Signed by District Judge Catherine D. Perry on 2/13/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RANDALL LAMAR NETHERY,
Petitioner,
v.
JASON LEWIS,
Respondent,

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No. 4:17-CV-268 CDP

MEMORANDUM AND ORDER
This matter is before me on the petition of Randall Nethery for a writ of
habeas corpus under 28 U.S.C. § 2254. The petition appears to be barred by the
statute of limitations. As a result, petitioner must show cause why it should not be
summarily dismissed.
Petitioner was convicted of burglary, rape, and sodomy on January 23, 1992.
Missouri v. Nethery No. CR189-158FX (St. Charles County). On March 3, 1992,
the court sentenced him to three consecutive life sentences. The sentence was
affirmed on appeal. Missouri v. Nethery, 870 S.W.2d 241 (Mo. Ct. App. 1994)
(per curiam).
According to petitioner, he did not file a motion for postconviction relief
until March 23, 2014.

Nethery v. Missouri, No. 1411-CC00276 (St. Charles

County). However, the court dismissed the case as successive after petitioner’s

counsel notified the court that in 1992 and 1993 petitioner had “filed one or more
motions under Rule 29.15 the ultimate disposition of which is not clear from the
Record.”
In the instant petition, petitioner argues that trial counsel was ineffective and
that he was unlawfully seized by the police.
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. Although the Court lacks the details of petitioner’s 1992 and 1993
postconviction motions, it is clear that his conviction became final at some point in
the 1990s. Therefore, the petition appears to be untimely.
Accordingly,
IT IS HEREBY ORDERED that, no later than twenty-one (21) days from
the date of this Order, petitioner must show cause why this action should not be
dismissed.
IT IS FURTHER ORDERED that if petitioner does not comply with this
Order, the Court will dismiss this action without further proceedings.
Dated this 13th day of February, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
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