Mullins v. Steele

Filing 10

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that petitioner's application for writ of habeas corpus is DENIED AND DISMISSED as TIME-BARRED. IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel is DENIED AS MOOT. IT IS FURTHER ORDERED that no certificate of appealability shall issue. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Catherine D. Perry on 6/21/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICHARD JOHN MULLINS,
Petitioner,
v.
TROY STEELE,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:17-CV-1562 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.
Background
On September 30, 2008, petitioner pled guilty to felony theft/stealing over $500 in
property. See State v. Mullins, No. 08BB-CR00984-01 (12th Judicial Circuit, Warren County
Court). On that same date he was sentenced to an aggregate prison term of ten years in the
Missouri Department of Corrections. The court suspended the execution of the sentence (“SES”),
and retained jurisdiction over petitioner for 120 days, pursuant to Mo.Rev.Stat. § 559.115 under
the Missouri Shock Incarceration Program. On December 16, 2008, the court ordered that
petitioner be released on probation for a period of five years. Petitioner did not appeal the
sentence or file a timely motion for post-conviction relief.
The court revoked petitioner=s probation on September 9, 2010. Id. Petitioner waited until
April 19, 2017 to file a motion for post-conviction relief under Missouri Rule 24.035, which was

1

On May 30, 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.
1

denied on that same date without a hearing. See Mullins v. State, No. 17BB-CC00036 (12th
Judicial Circuit, Warren County Court). Petitioner is currently incarcerated at Eastern Reception
Diagnostic and Correctional Center, where Troy Steele is Warden.
In the instant petition, petitioner argues that his counsel was ineffective and that his
sentence is invalid under the Missouri Supreme Court case of State v. Bazell, 497 S.W.3d 263
(Mo.banc 2016).
Legal Analysis
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…
(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;...
Under Missouri law a suspended execution of sentence (“SES”) is an entry of judgment,
because the sentence has been assessed and only the act of executing the sentence has been
suspended. See State v. Nelson, 9 S .W.3d 687, 688 (Mo. Ct. App. 1999). The time for filing a
direct appeal of the judgment expired ten (10) days after the judgment was entered. Mo. Sup. Ct. R.
30.01(d). As a result, petitioner=s judgment on his original conviction became final ten (10) days
after he was sentenced on September 30, 2008. Petitioner’s judgment on his revocation became
final ten (10) days after he was revoked on September 9, 2010.
Because petitioner did not file an appeal or motion for post-conviction relief within the
one-year period for either his original sentence or his revocation, but instead waited until almost
2

seven years after his revocation, it matters not whether he is attempting to overturn his original
conviction or his revocation conviction: both convictions and sentences are time-barred pursuant
to § 2244.
Seemingly recognizing that his petition is untimely on its face, petitioner asserts that the
Court should restart his federal limitations period under § 2244(d)(1)(C). He argues in his
petition that his prior state convictions were unlawfully used to enhance his state sentence for
stealing, as set forth in the recent Missouri Supreme Court of Missouri v. Bazell, 497 S.W3d.263
(Mo.banc 2016).2
Bazell did not restart the statute of 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. In his response brief, petitioner requests that decisions of the State Supreme
Courts, specifically those of the Missouri Supreme Court, should qualify under § 2244(d)(1)(C)
to restart the statute of limitations period. However, such decisions do not qualify by the plain
language of the statute. And petitioner has not presented any law to support his position.
In light of the aforementioned, petitioner’s application for writ of habeas corpus is
untimely.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s application for writ of habeas corpus is
DENIED AND DISMISSED as TIME-BARRED.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel is
DENIED AS MOOT.
2

In State v. Bazell, the appellant was convicted of various stealing offenses under Section 570.030,
including two convictions for stealing firearms. 497 S.W.3d at 265. His convictions for stealing
firearms were enhanced to felonies pursuant to § 570.030.3(3)(d). On appeal, the Missouri
Supreme Court reversed the appellant's convictions for stealing firearms because the Court
concluded that the plain language of § 570.030.3 barred it from being used to enhance the
appellant's stealing offenses.
3

IT IS FURTHER ORDERED that no certificate of appealability shall issue.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 21st day of June, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

4