McGee v. Schmitt
MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that petitioner's motions for leave to proceed in forma pauperis [# 2 and # 3 ] are GRANTED. IT IS FURTHER ORDERED that the instant application for writ of habeas corpus is DENIED as time barred. Se e 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. IT IS FURTHER ORDERED that to the extent petitioner is seeking conditional or unconditional release this petition is DENIED due to petitioner's failure to exhaust hi s available state remedies. IT IS FURTHER ORDERED that the Clerk shall docket this case as Kevin D. McGee v. David Schmitt. IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel [Doc. # 6 ] is DENIED AS MOOT. An appropriate Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on 6/21/2017. (NEB)
UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
KEVIN D. MCGEE,
DAVID SCHMITT, 1
No. 4:17-CV-1490 RLW
MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Kevin McGee for leave to commence
this action without payment of the required filing fee, see 28 U.S.C. § 1915(a), and application
for a writ of habeas corpus pursuant to 28 U.S .C. § 2254.2 Upon consideration of the financial
information provided with the application, the Court finds that the applicant is financially unable
to pay any portion of the filing fee. Therefore, the Court will grant petitioner leave to proceed in
forrna pauperis pursuant to 28 U.S.C. § 1915(a). 1
Petitioner has named as respondent the State of Missouri. The proper respondent when a
petitioner is in jail due to the state action he is attacking is the state officer having custody of the
applicant. See Rule 2 of the Rules Governing § 2254 Cases. Petitioner is currently residing at the
Southeast Missouri Mental Health Center ("SMMHC"). Accordingly, David Schmitt, the Chief
Operating Officer of SMMHC, is the proper respondent.
Petitioner filed a document entitled "complaint and request for injunction" that this Court is
interpreting as a request for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 given that
petitioner is seeking release from the Missouri Department of Mental Health. Additionally,
petitioner seeks monetary damages for "false imprisonment" and "entrapment" and "mondo
bondage." However, damages are unavailable in a habeas corpus action. The Court believes that
plaintiff was attempting to bring a separate action pursuant to 42 U.S.C. § 1983 in Missouri State
Court in St. Francois County, according to the documents received from Clerk of the Circuit Court,
Vicki J. Weible. [Doc. #4] These documents will be returned to Ms. Weible by separate Order
indicating that it is this Court' s belief that the documents were meant to be filed in St. Francois
Because the instant petition is time-barred, the Court will dismiss it without requiring a
response from David Schmitt. To the extent petitioner is seeking conditional or unconditional
release, his petition will also be dismissed for his failure to exhaust his available state remedies.
Petitioner, who is confined at the Southeast Missouri Mental Health Center in Farmington,
Missouri, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner states that in
1988 he was convicted of third-degree misdemeanor assault and flourishing a deadly weapon
after pleading not guilty by reason of insanity ("NGRI") in the Circuit Court of Cape Girardeau
County, Missouri. He states that he was sentenced on June 8, 1988 and that he did not appeal the
judgment. As grounds for relief, petitioner claims that his attorney coerced him into entering the
plea by falsely representing that petitioner would only spend six months in a state hospital.
Both 28 U.S.C. § 2243 and Rule 4 of the Rules Governing§ 2254 Cases in the United
States District Courts provide that a district court may summarily dismiss a petition for writ of
habeas corpus if it plainly appears that the petitioner is not entitled to relief. A review of the
instant petition indicates that it is time barred under 28 U.S.C. § 2244(d)(l), and is subject to
The Antiterrorism and Effective Death Penalty Act ("AEDP A") establishes a one-year
period of limitation for habeas corpus petitions that begin to run, as relevant here, from "the date
on which the judgment became final by the conclusion of direct review or the expiration of the
time for seeking such review." 28 U.S.C. § 2241(d)(l)(A). Petitioner was sentenced on June 8,
1988 and did not appeal the judgment. Therefore, under § 2244(d)(l )(A), the one-year limitation
period began to run - at the latest - thirty days from June 8, 1988. Cf Smith v. Bowersox, 159
F.3d 345 (8th Cir. 1998); Mo. Sup. Ct. R. 30.0l(d). Because the judgment petitioner wishes to
attack became final before the enactment of the AEDP A on April 24, 1996, he is entitled to a
one-year grace period which ended on April 24, 1997. See Ford v. Bowersox, 178 F.3d 522, 523
(8th Cir. 1999). The instant petition was filed more than nineteen (19) years after expiration of
the grace period. Therefore, it is untimely.
To the extent that petitioner is seeking conditional or unconditional release, his
petitioner's application for habeas relief is subject to dismissal due to his failure to exhaust his
available state remedies.
Under Missouri Revised Statutes § 552.040, a committed person can only petition under
§ 2554 for either conditional or unconditional release. Petitioner states that he has sought both
remedies at one time. However, he has not indicated which remedy he has most recently sought
and been denied. Therefore, in an abundance of caution, the Court will address both avenues for
relief in Missouri.
Conditional release is for a limited duration and is qualified by reasonable conditions. See
§ 552.040.10(3). To obtain conditional release a petitioner must prove, by clear and convincing
evidence, that he "is not likely to be dangerous to others while on conditional release."
§552.040.12(6). A conditional release implies that despite a mental disease or disorder, the
committed person is eligible for limited freedom from a mental health facility, subject to certain
conditions. Greeno v. State, 59 S.W.3d 500, 504 (Mo. bane 2001).
Unconditional release, by contrast, can be granted only if the petitioner shows "by clear
and convincing evidence that he does not have, and in the reasonable future is not likely to have,
a mental disease or defect rendering him dangerous to the safety of himself or others."
§552.040.7. Thus, Missouri places the burden on the insanity acquittee to prove he or she
qualifies for conditional or unconditional release by clear and convincing evidence. 3 Grass v.
When a Missouri Court accepts a plea of not guilty by reason of mental disease or defect, the
Reitz, 643 F.3d 579, 581 (8th Cir.2011); Mo.Rev.Stat.§§ 552.040.7(6) & 552.040.12(6); State v.
Rottinghaus, 310 S.W.3d 319, 324 (Mo.Ct.App.2010).
Clear and convincing evidence is "evidence that instantly tilts the scales in the affirmative
when weighed against the evidence in opposition so that the court is left with the abiding
conviction that the evidence is true." Greeno, 59 S.W.3d at 505 (internal citations omitted).
When an individual is acquitted by reason of mental disease or defect for a dangerous felony, in
order to grant conditional or unconditional release, the court also must find that the individual "is
not now and is not likely in the reasonable future to commit another violent crime" and "is aware
of the nature of the violent crime committed ... and presently possesses the capacity to appreciate
the criminality of the violent crime ... and ... to conform [his or her] conduct to the requirements
of law in the future ." Mo.Rev.Stat. § 552.040.20. The denial of a petition for either conditional or
unconditional release is "without prejudice to the filing of another application after the expiration
of one year." § 552.040.13, 8.
Title 28 U.S.C. § 2254(b)(1 )(A) prohibits a grant of habeas relief on behalf of a person in
state custody unless that person has "exhausted the remedies available in the courts of the State."
"The exhaustion requirement of§ 2254(b) ensures that the state courts have the opportunity fully
to consider federal-law challenges to a state custodial judgment before the lower federal courts
may entertain a collateral attack upon that judgment." Duncan v. Walker, 533 U.S . 167, 178-79
defendant is deemed acquitted of the charges on the ground of mental disease or defect excluding
responsibility. Taylor v. State, 262 S.W.3d 231, 238 (Mo . bane 2008) ("If defendant succeeds on
his affirmative defense, he is absolved of criminal responsibility."). Thus, a defendant's success in
arguing that he or she is not guilty by reason of mental disease or defect effectively acquits the
defendant of the charged crime. Those individuals are commonly referred to as "insanity
acquittees." See Grass, 643 F.3d at 581; State v. Revels, 13 S.W .3d 293 , 294 (Mo. bane 2000).
(2001 ). The requirement prevents a federal court from granting a habeas petition based on a
constitutional violation that could be redressed adequately by pursuing an avenue of state relief
"still open to the habeas applicant at the time he files his application in federal court."
Humphrey v. Cady, 405 U.S. 504, 516 (1972).
Although most of the cases defining the contours of the exhaustion requirement arise
from challenges to state custody following criminal conviction, the Supreme Court's holding that
exhaustion requires only a fair presentation that is satisfied "by invoking one complete round of
the State's established appellate review process," O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999), applies with equal force when a habeas petitioner seeks to challenge state custody
pursuant to a civil commitment, see Beaulieu v. Minnesota, 583 F.3d 570, 575 (8th Cir.2009).
"To satisfy the exhaustion requirement, a person confined in the Missouri State Hospital must
apply for release under section 552.040 before filing a petition for a writ of habeas corpus.
Additionally, if the application for release is denied, the confined person must appeal to the
Missouri Court of Appeals." Kolocotronis v. Holcomb, 925 F .2d 278, 279 (8th Cir.1991)
(internal citation omitted). 4
This Court has reviewed the docket on Missouri Case.Net and it does not appear that
petitioner has applied to any state court for release under § 552.040. As a result, to the extent
Kolocotronis goes on to hold that "if unsuccessful [in the Missouri Court of Appeals], [the
confined person must] apply for transfer to the Missouri Supreme Court," id., based on Jones v.
Ritterbusch, 548 F.Supp. 89, 90 (W.D.Mo.1982). In 2001, after both Kolocotronis and Jones were
decided, the Missouri Supreme Court amended Supreme Court Rule 83.04 to provide that
"[t]ransfer by this Court is an extraordinary remedy that is not part of the standard review process
for purposes of federal habeas corpus review." See Randolph v. Kemna, 276 F.3d 401, 404 (8th
Cir.2002). Following this amendment, the Eighth Circuit has held that it is not necessary to apply
for transfer to the Missouri Supreme Court to exhaust state remedies for purposes of§ 2254. See
petitioner is seeking conditional or unconditional release, petitioner's application for writ of
habeas corpus will be dismissed due to his failure to exhaust his available state remedies. The
petition will be dismissed and the Court will not issue a certificate of appealability.
IT IS HEREBY ORDERED that petitioner's motions for leave to proceed in forma
pauperis [#2 and #3] are GRANTED.
IT IS FURTHER ORDERED that the instant application for writ of habeas corpus is
DENIED as time barred. See 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254
IT IS FURTHER ORDERED that to the extent petitioner is seeking conditional or
unconditional release this petition is DENIED due to petitioner's failure to exhaust his
available state remedies.
IT IS FURTHER ORDERED that the Clerk shall docket this case as Kevin D. McGee
v. David Schmitt.
IT IS FURTHER ORDERED that petitioner' s motion for appointment of counsel [Doc.
#6] is DENIED AS MOOT.
An appropriate Order of Dismissal will accompany this Memorandum and Order.
thi~day of June, 2017.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
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