Suber v. Hurley
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioner shall show cause no later than thirty (30) days from the date of this Memorandum and Order why his petition should not be dismissed as time-barred. IT IS FURTHER ORDERED that petitioner& #039;s motion to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that if petitioner wishes to pursue only claims relating to his revocation judgment, he should submit an amended petition in this action no later than thirty (30) days from the date of this Memorandum and Order.( Show Cause Response due by 7/5/2017.) Signed by District Judge Jean C. Hamilton on 6/5/17. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:17-CV-1602 DDN
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 January 14, 2010, petitioner pled guilty to three charges of felony assault in the first
degree. See State v. Suber, No. 09SL-CR04157-01 (21st Judicial Circuit, St. Louis County).
The trial court sentenced petitioner to an aggregate prison term of ten (10) years. The court
suspended the execution of the sentence (“SES”) and placed petitioner on parole. Petitioner did
not appeal the original sentence or file a timely motion for post-conviction relief.
The court revoked petitioner=s parole on June 11, 2015 and sentenced petitioner to five
(5) years’ imprisonment on August 31, 2015. Id.
Petitioner filed a motion for post-conviction relief relating to his parole violation,
pursuant to Missouri Supreme Court Rule 24.035 on July 2, 2015, which was denied without a
hearing on May 23, 2016. See Suber v. State, No. 15SL-CC02426 (21st Judicial Circuit, St. Louis
County). Petitioner appealed on June 7, 2016, and the Missouri Court of Appeals affirmed the
lower court on March 21, 2017. See Suber v. State, No. ED 104555 (Mo.Ct.App.). Petitioner is
currently incarcerated at Northeast Correctional Center, where James Hurley is the Warden.
In the instant petition, petitioner argues: (1) the State violated his due process rights by
failing to examine whether he had the ability to pay restitution; (2) his trial counsel was ineffective
for failing to include the matter of failure to pay restitution in his guilty plea as grounds for
revocation; (3) his appellate counsel was ineffective for failing to include his grounds for relief in
his post-conviction appeal of his revocation; (4) the State failed to follow due process in the
revocation proceedings, such as allowing petitioner to call witnesses, allowing petitioner to
cross-examine witnesses or providing petitioner with notice of intent to revoke; and (5) “the plea
court lacked the authority to hold a probation revocation proceeding and to revoke probation after
the expiration of [his] probationary period.”
It is somewhat unclear which of these claims relate to petitioner’s original conviction on
January 14, 2010, and if some of these claims relate only to petitioner’s revocation, which
occurred on June 11, 2015. To the extent that the claims relate only to petitioner’s original
conviction, the claims appear to be time-barred.1
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;
If petitioner wishes to file an amended petition including only those claims relating to his
revocation, he may do so. However, he must file the amended petition within thirty (30) days of the
date of this Memorandum and Order.
(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. E.g., 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 days after the judgment was entered. Mo. Sup. Ct. R.
30.01(d). As a result, petitioner=s original judgment in his case became final on January 24,
Because petitioner did not file an appeal or motion for post-conviction relief relating to
his original judgment within the one-year period, the limitations period for filing a federal habeas
petition relating to his original conviction expired on January 24, 2011. Thus, any claims relating
to his original judgment, are therefore, time-barred.
Petitioner may, of course, show cause as to why these claims should not be dismissed as
time-barred, by submitting a response to this Court, no later than thirty (30) days from the date of
this Memorandum and Order.
However, if petitioner agrees that his claims relating to his original judgment are in fact
time-barred, and he wishes to pursue in his § 2254 only claims relating to his revocation, he
should amend his petition within thirty (30) days of the date of this Memorandum and Order to
include claims relating only to his judgment of revocation.
IT IS HEREBY ORDERED that petitioner shall show cause no later than thirty (30)
days from the date of this Memorandum and Order why his petition should not be dismissed as
IT IS FURTHER ORDERED that petitioner=s motion to proceed in forma pauperis
[Doc. # 2] is GRANTED.
IT IS FURTHER ORDERED that if petitioner wishes to pursue only claims relating to
his revocation judgment, he should submit an amended petition in this action no later than thirty
(30) days from the date of this Memorandum and Order.
Dated this 5th
day of June, 2017.
\s\ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE
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