Whittley v. Steele

Filing 3

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioners motion for leave to proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that the petition for writ of habeas corpus 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 Henry Edward Autrey on 3/20/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRANDON P. WHITTLEY,
Petitioner,
v.
TROY STEELE,
Respondent,

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No. 4:17CV983 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the petition of Brandon Whittley for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Upon review, the Court finds that petitioner is not entitled
to relief. As a result, the petition is denied.
On July 27, 2015, the State charged petitioner with one count of stealing property in
excess of $500. Missouri v. Whittley, No. 13WA-CR00445-01 (Washington County). Petitioner
pled guilty, and on November 6, 2015, the court sentenced him to seven years’ imprisonment.
The court, however, suspended the execution of the sentence and gave him five years’ probation.
On September 6, 2016, the court suspended petitioner’s probation and scheduled a revocation
hearing. Finally, on March 6, 2017, the court revoked his probation and ordered that he serve his
seven-year sentence.
In the petition, petitioner argues that stealing in excess of $500 is no longer a felony
under Missouri v. Bazell, 497 S.W.3d 263 (Mo. banc), and therefore, his due process rights were
violated when the trial court ordered that he serve the original seven-year sentence. He also
claims he was denied equal protection because other criminal defendants have been granted
relief under Bazell.

At the time petitioner was sentenced, stealing property in excess of $500 was subject to
felony enhancement under Mo. Rev. Stat. § 570.030.3.

However, in Bazell, the Missouri

Supreme Court held that the enhancement did not apply to Bazell’s sentence for stealing
firearms. Id. at 266-67. Since then, the Missouri Court of Appeals has held that the felony
enhancement does not apply to stealing in excess of $500. See Missouri v. Bowen, --- S.W.3d --, 2017 WL 361185 *2-3 (January 24, 2017) (citing cases). The Court notes that Bazell did not
declare § 570.030.3 to be unconstitutional.

Rather, the court decided that, as a matter of

statutory interpretation, the felony enhancement did not apply to the offense. Bazell, 497 S.W.3d
at 266-67.
At first glance, it may appear that petitioner has failed to exhaust his state remedies by
failing to file an appeal or a motion for postconviction relief before filing this action. However,
the limitations period for challenging parole revocation decisions begins when the trial court
enters the revocation order. See Davis v. Purkett, 296 F. Supp. 2d 1027, 1029-30 (E.D. Mo.
2003). Therefore, this matter is ripe for review.
Under 28 U.S.C. § 2254(a), a district court may only entertain a petition for writ of
habeas corpus if the petitioner “is in custody in violation of the Constitution or laws or treaties of
the United States.” “[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see Poe
v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994) (“Jurisdiction is no exception to the general rule that
federal courts will not engage in collateral review of state court decisions based on state law.”);
Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (alleged violation of state sentencing
statute not cognizable in federal habeas proceedings). Furthermore, a state prisoner “may not . . .

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transform a state-law issue into a federal one merely by asserting a violation of due process.”
Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
With regard to his due process claim, petitioner argues that the state court incorrectly
applied the felony enhancement under Missouri law. He has not alleged or shown that the
enhancement provision is facially unconstitutional. The proper interpretation of state statutes is a
matter for the state courts to decide. Section 2254 does not confer jurisdiction on the federal
district courts to determine such matters. Consequently, the claim is not cognizable in these
proceedings.
Moreover, petitioner’s equal protection clause is frivolous. To succeed on an equal
protection claim, a petitioner must “allege and prove something more than different treatment by
government officials” to state an equal protection claim. Batra v. Bd. of Regents of Univ. of
Nebraska, 79 F.3d 717, 721 (8th Cir. 1996). “[T]he key requirement is that plaintiff allege and
prove unlawful, purposeful discrimination.” Id. at 722; see Albright v. Oliver, 975 F.2d 343, 348
(7th Cir.1992) (“you must be singled out because of your membership in the class, and not just
be the random victim of governmental incompetence”), aff'd on other grounds, 510 U.S. 266
(1994); Booher v. United States Postal Serv., 843 F.2d 943, 944 (6th Cir.1988) (“[t]he equal
protection concept does not duplicate common law tort liability by conflating all persons not
injured into a preferred class”); Joyce v. Mavromatis, 783 F.2d 56, 57 (6th Cir.1986) (“[t]he
equal protection argument fails here because the wrong is not alleged to be directed toward an
individual as a member of a class or group singled out for discriminatory treatment”). As a
result, petitioner is not entitled to relief.
Finally, petitioner has failed to make a substantial showing of the denial of a
constitutional right, which requires a demonstration “that jurists of reason would find it debatable

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whether the petition states a valid claim of the denial of a constitutional right.” Khaimov v. Crist,
297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted).

Thus, the Court will not issue a

certificate of appealability. 28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in forma
pauperis is GRANTED.
IT IS FURTHER ORDERED that the petition for writ of habeas corpus 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 20th day of March, 2017

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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