Mahone v. Prudden
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioner's motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that that, no later than twenty-one (21) days from the date of this Order, petitioner must show cau se why this action should not be dismissed. IT IS FURTHER ORDERED that if petitioner fails to timely respond to this Order, the Court will dismiss this action without further proceedings. Signed by District Judge Jean C. Hamilton on 2/23/2017. (GGB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:17-CV-310 NCC
MEMORANDUM AND ORDER
This matter is before the Court on the petition of Michael Mahone 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 order petitioner to show cause why it should not be summarily dismissed.
After a hearing in front of the Honorable Carolyn Whittington in St. Louis County Court
on October 4, 2012, petitioner’s probation was revoked, and his original sentence of 7 years’
imprisonment to the Missouri Department of Corrections was instated.1 See Missouri v. Mahone,
No. 08SL-CR01376-01 (21st Judicial Circuit, St. Louis County Court). On October 26, 2012, the
state court sentenced him to seven years’ imprisonment. He did not file an appeal of either his
original conviction or his revocation of his probation. Petitioner also did not file a timely motion
for post-conviction relief.
On September 16, 2016, petitioner filed a motion for post-conviction relief under Rule
24.035 in the trial court. He argued that his prior convictions were unlawfully used to enhance
Petitioner originally pled guilty to one count of felony forgery on July 30, 2010, and was
sentenced to a seven (7) year sentence with five (5) years’ probation. However, defendant was
given a Suspended Execution of Sentence (“SES”) as long as he completed the CHOICES
program. Petitioner does not appear to be filing a habeas corpus petition as to his original forgery
sentence, but rather makes it clear in his petition that he is filing his petition in relation to his
revocation of his probation.
his sentence under the new law announced by the Missouri Supreme Court in Missouri v. Bazell,
497 S.W.3d 263 (Mo. banc 2016), in which the court determined the proper application of Mo.
Rev. Stat. § 570.030.3. The post-conviction motion is currently pending.2
In the instant petition, petitioner asserts that his counsel was ineffective and that his
sentence is invalid under Bazell. He maintains that the petition has been timely filed because the
court’s decision in Bazell restarted the limitations period.
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
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
If no direct appeal is taken, a Missouri conviction becomes final ten days after the
judgment is entered. Mo. R. Civ. P. § 81.04(a). Petitioner’s sentence, therefore, became final on
October 14, 2012. Because he did not file an appeal or a timely motion for post-conviction
Although it appears that his motion for post-conviction relief, filed within Case No. 08SLCR01376-01 (21st Judicial Circuit, St. Louis County Court), is still pending, there is no doubt
that the motion was filed more than 180 days after petitioner was delivered to the Missouri
Department of Corrections in violation of Missouri Rule of Court 24.035.
relief, the federal limitations period expired on October 14, 2013. As a result, the petition
appears to be time-barred.
Bazell did not restart the limitations period under § 2244(d)(1)(C) because only decisions
of the United States Supreme Court may work to restart the limitations period under that
provision. Moreover, Bazell concerns only state law, which is not a cognizable ground for relief
under § 2254. Therefore, petitioner must show cause why the petition should not be dismissed as
IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma pauperis [Doc.
# 2] is GRANTED.
IT IS FURTHER ORDERED that 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 fails to timely respond to this Order, the
Court will dismiss this action without further proceedings.
Dated this 23rd
day of February, 2017.
\s\ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRIC JUDGE
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