Bookwalter v. Steele

Filing 28

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Petitioner's Motion for Release on Bail Pending Decision on Petitioner's Pending Amended Habeas Petition is DENIED without prejudice. (Doc. 22).. Signed by Magistrate Judge Shirley Padmore Mensah on 4/13/18. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DALE D. BOOKWALTER,
Petitioner,
v.
TROY STEELE,
Respondent.

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No. 4:17-CV-2333 SPM

MEMORANDUM AND ORDER
Petitioner commenced this case by filing a petition for writ of habeas corpus
under 28 U.S.C. Sec. 2254. (Doc. 1). The matter is currently before the court on
Petitioner’s Motion for Release on Bail Pending Decision on Petitioner’s Pending
Amended Habeas Petition. (Doc. 22). The parties have consented to the jurisdiction of
the undersigned United States Magistrate Judge pursuant to 28 U.S.C. Sec. 636(c). (Doc.
5).
After a jury trial in 2009, Petitioner was convicted of statutory sodomy in the first
degree. See State v. Bookwalter, No. 08DU_CR01415-02 (35th Judicial Circuit). The
trial court sentenced him to fifteen years in prison, and his direct appeal was denied.
State v. Bookwalter, 326 S.W. 3d 530 (Mo. Ct. App. 2010). Over seven years ago,
Petitioner filed a timely Rule 29.15 petition for post-conviction relief, which remains
pending in state court. Bookwalter v. State, No. 11SD-CC00033 (35th Judicial Circuit).
Due to this inordinate delay in his state post-conviction proceedings, the Court is
allowing Petitioner to pursue his federal habeas petition even though his state remedies
are not exhausted. (Doc. 7). Petitioner urges the Court to release him pending its

decision in his habeas petition. He contends that he has asserted at least one ground for
relief that clearly warrants habeas relief. He also asserts that his case is exceptional, due
both to the fact that he has served almost ten years of his fifteen year sentence, and
because of the inordinate and inexplicable delay in his state post-conviction proceedings.
Accordingly, Petitioner alleges that he has met the exceedingly high standard for release
on bail pending a habeas petition.
“In spite of the lack of specific statutory authorization, it is within the power of a
District Court of the United States to enlarge a state prisoner on bond pending hearing
and decision on his application for a writ of habeas corpus.” Martin v. Solem, 801 F.2d
324, 329 (8th Cir. 1986) (quoting In re Wainwright, 518 F.2d 173, 174 (5th Cir. 1975)
(per curiam) (citations omitted). To obtain release pending habeas review, the petitioner
must overcome a “formidable barrier.” Glynn v. Donnelly, 470 F.2d 95, 98 (1st Cir.
1972). Release on bail is not favored in federal habeas corpus proceedings because it
“supplies the sought-after remedy before the merits of petitioner’s application are
determined.” Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981). To qualify for release,
the petitioner must show a substantial federal constitutional claim that “presents not
merely a clear case on the law, but a clear, and readily evident, case on the facts.”
Martin, 801 F.2d at 329 (quoting Glynn, 470 F.2d at 98). There must also exist “some
circumstance making the request exceptional and deserving of special treatment in the
interests of justice.” Martin, 801 F.2d at 329 (quoting Ostrer v. United States, 584 F. 2d
594, 599 (2d Cir. 1978). Habeas petitioners are rarely granted release on bail pending
disposition. Martin, 801 F.2d at 329; see also United States v. Mett, 41 F.3d 1281, 1282
n.4 (9th Cir. 1994) (special circumstances included a serious deterioration of health while

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incarcerated); Landano v. Rafferty, 970 F.2d 1230, 1238-39 (3d Cir. 1992) (bail
warranted because advanced untreated diabetes was causing rapid progression to
blindness, and prisoner was not granted liberty, but instead taken to hospital for
emergency treatment); Johnston v. Marsh, 227 F.2d 528, 529 (3d Cir. 1955) (petitioner
was gravely ill and was released for emergency hospital treatment). Courts have also
recognized that release could be proper because of extraordinary delay in the processing
of a petition. See e.g. Glynn, 470 F.2d at 98 (recognizing that while extraordinary delay
could justify release, such relief was not warranted in that case). The high standard
applicable to requests for release while the Court considers a petitioner’s habeas petition
“reflects the recognition that a preliminary grant of bail is an exceptional form of relief in
a habeas corpus proceeding.” Lucas v. Hodden, 790 F.2d 365, 367 (3d Cir. 1986).
Petitioner asserts that Ground Seven of his habeas petition represents “a
substantial constitutional issue” on which he is likely to prevail. (Doc. 22 at 3). Ground
Seven is a claim of ineffective assistance of appellate counsel that Petitioner argues
presents a “clear case on the law and the facts.” Id. at 4. Petitioner alleges that his
appellate counsel was ineffective for failing to argue on appeal a claim of trial court error
in submitting to the jury a statutory sodomy verdict director that did not specify which
alleged act of anal sodomy petitioner committed, thus violating his right to a unanimous
verdict. He alleges that his right to a unanimous jury was clear at the time of his trial,
citing State v. Celis-Garcia, 344 S.W.3d 150, 155 (Mo. banc 2011). He also alleges that
if this issue had been raised in his direct appeal, the appellate court would have found
plain error and vacated his conviction for a new trial, citing State v. Carlton, 527 S.W.3d
865, 874 (Mo. Ct. App. 2017), in which the appellate court remanded for a new trial after

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finding that the verdict directors at trial did not insure juror unanimity as to the criminal
conduct supporting defendant’s convictions.
Petitioner also alleges that exceptional circumstances exist in his case, as he has
already served almost ten years of his fifteen-year sentence. He argues that he must be
released in order to prevent him from serving more prison time than necessary, because
even if he is successful on one or more of his grounds for habeas relief, the State could
appeal that ruling and request a stay of his release pending the outcome of its appeal. He
also asserts that exceptional circumstances exist because his state post-conviction
proceeding has been pending for over seven years in the circuit court, which he asserts is
an inordinate and unexplainable delay. He argues that this delay in justice is so
exceptional that it justifies special treatment of his case, necessitating his release pending
determination of his habeas petition in this Court.
The Court turns first to Petitioner’s contention that his case presents exceptional
circumstances that require his release. Petitioner argues that he has served almost ten
years of his fifteen-year sentence, and if he is not released on bail he is at risk of serving
“more time in the Department of Corrections than necessary.” (Doc. 22 at 2). There is
nothing unusual about a claim of unlawful confinement in a habeas proceeding, and there
is nothing extraordinary about serving a sentence imposed after one was convicted. The
Court is not convinced that anything about Petitioner’s situation of having already served
a substantial portion of his sentence is exceptional enough to justify his release on bail at
this time. Petitioner also contends that extraordinary circumstances exist in his case
because his state post-conviction petition has been pending for over seven years. To be
sure, this is unusual; however, the Court has adequately addressed the unusual straits in

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which Petitioner finds himself due to this delay by allowing his federal habeas petition to
move forward even though his state claims are not exhausted. At this time, there is
nothing to suggest that there will be excessive delay in this habeas case, and in further
recognition of the delay that has already occurred at the state level, the Court will
prioritize its review of Petitioner’s petition on the merits once it is fully briefed, and will
endeavor to issue its decision as expeditiously as reasonably practicable thereafter.
Because the Court finds that Petitioner’s case does not present “some
circumstance making [the request for release] exceptional and deserving of special
treatment in the interest of justice,” the Court need not consider at this time whether
Petitioner also shows a “substantial federal Constitutional claim that ‘presents not merely
a clear case on the law, but a clear, and readily evident, case on the facts.’” Martin
(quoting Glynn, 470 F.2d at 98). The Court is not questioning the merit of Petitioner’s
claims, but is merely recognizing that this case is still in its very early stages, and while
Petitioner may well have presented meritorious Constitutional claims, that determination
has not yet been, and will not be, made at this time.
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Motion for Release on Bail
Pending Decision on Petitioner’s Pending Amended Habeas Petition is DENIED without
prejudice. (Doc. 22).

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

Dated this 13th day of April, 2018.

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