Mahone v. Prudden

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition IS DENIED, and this action is DISMISSED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. An Order of Dismissal will be filed forthwith. Signed by District Judge John A. Ross on 3/10/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MICHAEL MAHONE,
Petitioner,

v.
DOUGLAS PRUDDEN,
Respondent,

)
)
)
)
)
)
)
)

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 is untimely, and it is denied.
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. Mahone v. Missouri, No. 1622-CC10512 (St. Louis City). 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. Bazell, 497 S.W.3d 263 (Mo. bane
2016), in which the court determined the proper application of Mo. Rev. Stat. § 570.030.3.
Petitioner voluntarily dismissed the petition on February 9, 2017, upon the advice of counsel.
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
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.

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.
The Court previously ordered petitioner to show cause why his petition should not be
denied as untimely. He has not responded. As a result, the Court finds that this action is barred
by the limitations period and must be dismissed pursuant to 28 U.S.C. § 2254, Rule 4.

2

Finally, petitioner has failed to demonstrate that jurists of reason would find it debatable
whether the petition is untimely. Thus, the Court will not issue a certificate of appealability. 28
U.S.C. § 2253(c).
Accordingly,

IT IS HEREBY ORDERED that the petition IS DENIED, and this action Is
DISMISSED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
An Order of Dismissal will be filed forthwith.
Dated this 10th day of March, 2017.

3