White v. Griffith
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioners application for writ of habeas corpus [Doc.#1] is DENIED AND DISMISSED AS TIME-BARRED.IT IS FURTHER ORDERED that no certificate of appealability shall issue. Signed by District Judge Jean C. Hamilton on 12/8/17. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DAVID GERMAINE WHITE,
) No. 4:17-CV-1332 JMB
MEMORANDUM AND ORDER
This matter is before the Court upon review of petitioner’s response to the order to show
cause.1 Having carefully reviewed petitioner’s response, the Court concludes that his arguments
are without merit and that the instant action is time-barred under 28 U.S.C. §§ 2254 and 2244.
On March 23, 2012, after a bench trial, petitioner was found guilty of burglary in the first
degree, unlawful use of a weapon, endangering the welfare of a child and property damage in the
second degree. Petitioner was sentenced to twenty-five (25) years’ imprisonment. See State v.
White, No. 1122-CR00277-01 (22nd Judicial Circuit, City of St. Louis). Petitioner’s conviction and
sentence were affirmed on direct appeal on May 7, 2013. See White v. State, No.ED98194
On May 26, 2017, the Court ordered petitioner to show cause as to why the Court should not
dismiss the instant petition for writ of habeas corpus as time-barred.
Petitioner filed a motion for post-conviction relief on July 22, 2013. See Mullins v. State,
No. 1322-CC08975 (22nd Judicial Circuit, City of St. Louis). The trial court denied his motion on
December 31, 2014. Id. Petitioner filed a timely appeal of the denial, and the Missouri Court of
Appeals affirmed the trial court’s decision on October 27, 2015. See Mullins v. State, No.
ED102604 (Mo.Ct.App.). The mandate was entered on November 18, 2015.
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts provides
that a district court shall summarily dismiss a § 2254 petition if it plainly appears that the petitioner
is not entitled to relief.
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
The United States Supreme Court, in Gonzalez v. Thaler, 132 S.Ct. 641 (2012), held that
a judgment becomes final under § 2244)(d)(1)(A) when the time for seeking review in the state’s
highest court expires. For Missouri prisoners, like petitioner, who do not file a motion to transfer
to the Missouri Supreme Court, the limitations period begins to run fifteen (15) days after the
Missouri Court of Appeals affirms a conviction on direct appeal. See Mo.S.Ct.R. 83.02; see also,
Payne v. Kemna, 441 F.3d 570, 572 (8th Cir. 2006) (post-conviction relief proceedings final on
issuance of the mandate). Petitioner=s one-year period of limitations, therefore, began to run on
approximately November 18, 2015.2
Although petitioner purportedly signed his application for writ of habeas corpus on May
16, 2016, this Court did not receive his petition until April 13, 2017. Moreover, there is a
discrepancy between the date petitioner allegedly “declared” that he was placing his petition in
the prison mailing system, on May 4, 2016, and the date he “purportedly “signed” the petition,
on May 16, 2016.3 Additionally, petitioner’s application for writ did not state that he had
prepaid first-class postage.
The time during which a properly filed post-conviction relief motion is pending tolls the statute of
limitations. 28 U.S.C. § 2244(d)(2).
The motion to proceed in forma pauperis does not clarify the discrepancy mentioned above. On
his motion to proceed in forma pauperis, which was received on the same date as his petition,
petitioner declares under penalty of perjury that he has reviewed the information on his motion for
accuracy and signs and dates his motion on December 22, 2015. The certificate filled out below his
signature by Potosi Correctional Center’s Authorized Officer, is likewise signed and dated on
December 22, 2015. Thus, it appears his petition and motion for in forma pauperis may have been
completed at different times. In addition, both documents appear to have been completed on dates
several months prior to the date this Court received the documents from Potosi Correctional
Thus, petitioner was not in compliance with the Rule 3(d) of the Rules Governing Habeas
Corpus when he filled out his certification, and his petition appears to be untimely, as it was filed
more than a year after his post-conviction proceedings concluded.4
Rule 3(d) of the Rules Governing Habeas Corpus, states:
A paper filed by an inmate confined in an institution is timely filed if deposited in
the institution’s internal mailing system on or before the last day for filing. If an
institution has a system designed for legal mail, the inmate must use that system
to receive the benefit of this rule. Timely filing may be shown by a declaration in
compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which
must set forth the date of deposit and state that first-class postage has been
In his response to the Order to Show Cause, petitioner states that when he did not receive
a response from the Court after he thought he filed his habeas petition, on some unnamed date,
he “decided to look over [his] entire case file, and to [his] surprise found what [he] believed to
have already mailed out was never sent.” Petitioner claims in a conclusory fashion that he
believes the correctional officers who searched his cell substituted one legal document for
another and “put something else inside the manila envelope.”
Petitioner has still not specified the date he actually sent his actual petition to this Court,
other than to ask the Court to “accept his delayed delivery” of his petition. Moreover, he does not
explain why he did not certify the proper date he placed his petition in the prison mailing system
when he “mistakenly found” that his petition had not been sent out, in compliance with Rule 3(d)
of the Rules of Habeas Corpus.
Pursuant to Rule 3(d), the Court finds that petitioner did not timely file his petition in this
Court. Although the Court is sympathetic to petitioner with regard to his “mistaken delivery”
The Court understands that the prison mailing system takes additional time, but it certainly does
not take almost a year.
issues, the Court does not believe that such a “mistake” warrants equitable tolling of the statute
of limitations period in this instance.
AGenerally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.@ Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also
Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is Aan exceedingly narrow
window of relief.@ Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001). APro se status, lack of legal
knowledge or legal resources, confusion about or miscalculations of the limitations period, or the
failure to recognize the legal ramifications of actions taken in prior post-conviction proceedings
are inadequate to warrant equitable tolling.@ Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir.
2004) (quotation marks omitted); Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000)
(holding that Aeven in the case of an unrepresented prisoner alleging a lack of legal knowledge or
legal resources, equitable tolling has not been warranted@).
As petitioner has failed to give an equitable reason why his untimeliness should be
excused, the Court must dismiss the petition under 28 U.S.C. § 2244.
IT IS HEREBY ORDERED that petitioner’s application for writ of habeas corpus [Doc.
#1] is DENIED AND DISMISSED AS TIME-BARRED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
day of December, 2017.
\s\ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE
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