Mullins v. Steele
MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that petitioner's motion to proceed in forma pauperis [Doc.# 3 ] is GRANTED. IT IS FURTHER ORDERED that petitioner shall show cause no later than thirty (30) days from the date of this order why his petition should not be dismissed as time-barred. IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel [Doc. # 2 ] is DENIED without prejudice at this time. Signed by District Judge Catherine D. Perry on 5/30/2017. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RICHARD JOHN MULLINS,
No. 4:17-CV-1562 JMB
MEMORANDUM AND ORDER
Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254. Because the petition
appears to be untimely, the Court will order petitioner to show cause why the petition should not
be summarily dismissed.
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
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
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
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
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, 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
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. As such, petitioner will be asked to show cause why this action should not be
dismissed as untimely.
In light of this Court’s show cause order, the Court will deny petitioner’s request for
appointment of counsel at this time. Petitioner’s claims appear to be time-barred and therefore,
petitioner appears to be able to present his remaining claims on his own behalf.
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.
IT IS HEREBY ORDERED that petitioner=s motion to proceed in forma pauperis
[Doc.# 3] is GRANTED.
IT IS FURTHER ORDERED that petitioner shall show cause no later than thirty (30)
days from the date of this order why his petition should not be dismissed as time-barred.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel [Doc.
#2] is DENIED without prejudice at this time.
Dated this 30th day of May, 2017.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
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