Brown v. Atkinson

Filing 27

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the sentencing hearing is set in this matter for Tuesday, February 26, 2019, at 11:00 a.m. in the courtroom of the undersigned. Signed by District Judge Henry Edward Autrey on 11/29/18. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KERRY BROWN,

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) Case No: 4:17CV1372 HEA
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Petitioner,
vs.

ANDY ATKINSON,
Respondent.

OPINION, MEMORANDUM AND ORDER
Petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. §
2254 [Doc. No.1] on April 21, 2017. Respondent filed a Response to the Court’s
Order to Show Cause Why Relief Should Not be Granted [Doc. No. 10] on August
10, 2017. On October 26, 2017, Petitioner filed his Reply to Response to Order to
Show Cause [Doc. No.13]. On November 28, 2018 this court conducted a hearing
on the matters set forth in the Petition. For the reasons explained below, the
Response to the Order to Show Cause Why Relief Should not be Granted is well
taken and the petition will be denied.
Procedural Background
On September of 1988 Petitioner was committed to the Department of
Mental Health as a result of being found Not Guilty Due to Mental Disease or
Defect for the offenses of Second Degree Burglary, Second Degree Arson, First

Degree Property Damage, and Unlawful Use of a Weapon. Thereafter, on March
31, 2015 Petitioner filed a petition for Unconditional Release. On August 19, 2015
the Missouri trial court in St. Charles County, after a hearing on the merits of his
claim for relief, denied Petitioner’s request for relief.
It should be noted that the record makes it clear that there were attempts to
assist Petitioner in his re-entry to mainstream society which resulted in a number of
conditional release events spanning from June of 1993, and extended January
1994, November 1994, June of 1995, November of 1995, December of 1995,
November of 1997, November of 1998, December of 1999, December of 2000,
November 2001, November of 2002, October of 2004, December of 2005,
November of 2007, November of 2009, November of 2011, January of 2013,
October of 2013, and November of 4014. In 2014 the condition of Petitioner
deteriorated and he was returned to the St. Louis Psychiatric Rehabilitation Center.
After a plan for release was developed Petitioner was again conditionally released
in December of 2014. The record reflects Petitioner was found to have violated the
conditions of that release and was returned to the Department of Mental Health.
After having been found in violation of his conditional release Petitioner
filed for Unconditional Release on March 31, 2015. The record reflects a full and
complete hearing on the Motion for Unconditional Release occurred and the
motion was denied by the Missouri state trial court. The trial court noted that
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Petitioner was still dangerous. On appeal the Missouri Appellate Court affirmed
the ruling of the trial court.
Now, in his Motion under 28 U. S. C §2254 to Vacate, Set Aside, or
Correct Judgment of Person in State Custody he asserts his continued care by the
Department of Mental Health is unlawful because he is no longer a threat to
himself or the community. Petitioner therefore asserts he is being held in violation
of the Constitution, laws, or treaties of the United States.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §
2254 (“AEDPA”) applies to all petitions for habeas relief filed by state prisoners
after the statute’s effective date of April 24, 1996. When reviewing a claim that
has been decided on the merits by a state court, AEDPA limits the scope of judicial
review in a habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a state court shall not be granted
with respect to any claim that was adjudicated on the merits in state
court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding.
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28 U.S.C. § 2254(d).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, held that:
Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
529 U.S. 362, 412–13 (2000). Furthermore, the Williams Court held that “a federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” 529 U.S. at 409.
A state court decision must be left undisturbed unless the decision was
contrary to or involved an unreasonable application of clearly established federal
law as determined by the Supreme Court of the United States, or the decision was
based on an unreasonable determination of the facts in light of the evidence
presented in state court. Colvin v. Taylor, 324 F.3d 583, 586-87 (8th Cir. 2003).
A decision is contrary to United States Supreme Court precedent if it
decides a case based on a different rule of law than the rule dictated by United
States Supreme Court precedent, or it decides a case differently than the United
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States Supreme Court did on materially indistinguishable facts. Id. A decision may
only be overturned, as an unreasonable application of clearly established United
States Supreme Court precedent, if the decision is both wrong and an objectively
unreasonable interpretation or application of United States Supreme Court
precedent. Id. A federal habeas court may not disturb an objectively reasonable
state court decision on a question of federal law even if the decision is, in the
federal court’s view, wrong under Eighth Circuit precedent, and even if the habeas
court would have decided the case differently on a clean slate. Id. State court
factual determinations are presumed to be correct and this presumption can only be
rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).
Statute of Limitations
Congress provides a one-year window in which a habeas applicant can file a
petition for writ of habeas corpus. That window opens at the conclusion of direct
review. The window closes a year later. Failure to file within that one year
window requires the court to dismiss the petition for writ of habeas corpus. 28
U.S.C. §2244(d) (1) (A); See Cross-Bey v. Gammon, 322 F.3d 1012 (8th Cir.),
cert. denied, 540 U.S. 971 (2003). If an inmate does not seek a writ of certiorari on
direct review, direct review concludes when the time limit for seeking further
review expires. Gonzales v. Thaler, 132 S. Ct. 641, 653-54 (2012). Under Missouri

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Supreme Court Rule 30.01, Rule 30.03, Rule 81.04, and Rule 81.08, the time limit
for filing a notice of appeal is ten days after sentencing.
Discussion
Review under 28 U.S.C. § 2254 is a review to determine whether a person
“is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a).
Here the state trial court, citing State v. Revels, 13 S.W.3d 293, 297 (Mo.
banc 2000), concluded Petitioner was and continues to be dangerous. That court
also made conclusion about the credibility of testimony offered by Petitioner was
dubious and lacking in support from the record. The record supports the conclusion
by the state trial court that Petitioner was a danger to himself or others. Testimony
from the psychiatrists indicated that Petitioner has alcohol abuse issues and that he
needs to refrain from drugs and alcohol and maintain his medications in order to be
successful while on release. The record supports that he has difficulty in regard to
those things. The opinion is reasonable, and well-supported in the law as recited by
the trial court. The decision is a reasonable one and is entitled to deference under
28 U.S.C. §2254(d).
The ruling of the trial was appealed to the Missouri Appeals court. Upon
review of the trial court ruling the Missouri Appeals court affirmed the trial court
decision. The Appeals court concluded that the finding of not guilty by reason of
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mental disease or defect established that Brown had a mental disease or defect. The
Appeals court also concluded the state trial court acted well within its discretion in
finding the testimony offered by Petitioner was not credible. The Missouri Appeals
court found “Brown failed to present sufficient evidence to prove by clear and
convincing evidence that he did not have, and in the reasonable future was not
likely to have, a mental disease or defect rendering him a danger to himself or
others. Instead, there is substantial evidence in the record supporting the trial
court’s judgment denying Brown’s application for unconditional release.” This
determination was reasonable and is entitled to deferential treatment pursuant to 28
U.S.C. §2254(d).
There is ample support in the record for the determination and conclusions
of the state courts. Petitioner has failed to rebut the presumption of correctness
through allegation or evidence, which is clear and convincing in nature. The state
court rulings are entitled to deference under sections 2254 (d) and (e).
Conclusion
Based upon the foregoing discussion and analysis, the Petition for Writ of
Habeas Corpus is denied.
Certificate of Appealability
When a district court issues an order under § 2254 adverse to the applicant it
“must issue or deny a certificate of appealability.” R. Governing Section 2254
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Cases in the U.S. Dist. Cts., R. 11. If a federal court denies a habeas application on
procedural grounds without reaching the underlying constitutional claims, the court
should issue a certificate of appealability if the prisoner has shown “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Id.; see also Khaimov v. Crist,
297 F.3d 783, 786 (8th Cir. 2002) (interpreting Slack in the following manner: “1)
if the claim is clearly procedurally defaulted, the certificate should not be issued;
2) even if the procedural default is not clear, if there is no merit to the substantive
constitutional claims, the certificate should not be issued; but, 3) if the procedural
default is not clear and the substantive constitutional claims are debatable among
jurists of reason, the certificate should be granted”). Petitioner’s federal habeas
petition is clearly time-barred under AEDPA, and no reasonable jurist could that
find this case is timely filed. See Slack, 529 U.S. at 484; Khaimov, 297 F.3d at 786
Hence, no certificate of appealability will be issued.
Accordingly
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IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus,
[Doc. No. 1], is DENIED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
A separate judgment in accordance with this Opinion, Memorandum and Order
is entered this same date.
Dated this 29th day of November, 2018.

______________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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