Mahone v. Prudden

Filing 4

MEMORANDUM AND 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 fails to timely respond to this Order, the Court will dismiss this action without further proceedings. Signed by Magistrate Judge David D. Noce on 2/2/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL MAHONE,
Petitioner,
V.

DOUGLAS PRUDDEN,
Respondent,

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No. 4:17-CV-377 DDN

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.
Petitioner pled guilty on May 9, 2012, to one count of stealing. Missouri v. Mahone, No.
1122-CR01559-01 (St. Louis City). On October 26, 2012, the state court sentenced him to seven
years' imprisonment.

He did not file an appeal.

Nor did he file a timely motion for

postconviction relief.
On September 12, 2016, petitioner filed a motion for postconviction relief under Rule
24.035 in the trial court. He argued that his prior convictions were unlawfully used to enhance
his sentence under the new law announced by the Missouri Supreme Court in Missouri v. Bazel!,
497 S.W.3d 263 (Mo. bane 2016), in which the court determined the proper application of Mo.
Rev. Stat. § 570.030.3. The postconviction motion is currently pending.
In the instant petition, petitioner asserts that his counsel was ineffective and that his
sentence is invalid under Bazel!. He maintains that the petition has been timely filed because the
court's decision in Bazel! restarted the limitations period.

Under 28 U.S.C. § 2244(d):
(1) A I-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;
(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
diligence.
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
November 5, 2012. Because he did not file an appeal or a timely motion for postconviction
relief, the federal limitations period expired on November 5, 2013. As a result, the petition
appears to be time-barred.

Bazel/ did not restart the limitations period under § 2244( d)(l )(C) because only decisions
of the United States Supreme Court may work to restart the limitations period under that
provision. Moreover, Bazel/ 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
time-barred.
Accordingly,

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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 fails to timely respond to this Order, the
Court will dismiss this action without further proceedings.
Dated thisR.

~of February, 2017.

DAVID D. NOCE
UNITED STATES MAGISTRATE JUDGE

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