Bookwalter v. Steele

Filing 7

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in forma pauperis [Doc. #] is GRANTED. IT IS FURTHER ORDERED that the Clerk is directed to appoint Kevin Schreiner as Pro Bono Counsel to petitioner in this action. A separate Notice of Appointment of Pro Bono Counsel shall be entered by the Clerk. IT IS FURTHER ORDERED that appointed counsel shall have forty-five (45) days from the date of this Memorandum and Order to file an amended petition in this action. IT IS FURTHER ORDERED that a Case Management Order will be entered by separate Order of the Court.. Signed by Magistrate Judge Shirley Padmore Mensah on 12/7/17. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DALE D. BOOKWALTER,

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Petitioner,
v.
TROY STEELE,
Respondent.

No. 4:17-CV-2333 SPM

MEMORANDUM AND ORDER
This matter is before the Court on movant’s application for writ of habeas corpus brought
pursuant to 28 U.S.C. § 2254. Although petitioner’s post-conviction proceedings are still pending
in Stoddard County Court at this time, the Court will issue process on petitioner’s application for
habeas corpus in this Court as a result of the unreasonable delay in petitioner’s state court
remedies. The Court will also appoint counsel in this matter. See 28 U.S.C. § 1915(e)(1).
Background
On June 11, 2009, a jury convicted movant of first-degree statutory sodomy. Missouri v.
Bookwalter, No. 08DU-CR01415-01 (35th Judicial Circuit, Dunklin County Court). Movant
filed a timely appeal, and on November 17, 2010, the Missouri Court of Appeals affirmed.
Missouri v. Bookwalter, No. SD30013 (Mo. Ct. App.). On March 2, 2011, movant filed a Rule
29.15 motion for post-conviction relief in Stoddard County Circuit Court.

Bookwalter v.

Missouri, No. 11SD-CC00033 (35th Judicial Circuit, Stoddard County Court). Petitioner was
appointed counsel in his post-conviction proceedings, and an amended motion to vacate his
sentence was filed on June 15, 2011.

The trial Judge recused himself from the post-conviction relief proceedings on or about
June 20, 2011. The Honorable John Spielman was assigned to the matter on June 23, 2011.
Although petitioner’s appointed counsel had requested an evidentiary hearing at the time she
filed the amended motion to vacate on June 15, 2011, it was not until May 31, 2016, that the
Court granted the motion for evidentiary hearing, as well as petitioner’s motion to take
depositions in the action. Nonetheless, an evidentiary hearing date has still not been set in the
post-conviction action. However, petitioner’s appointed counsel has taken the depositions of
petitioner’s trial and appellate counsel.
Discussion
The unjustified delay by a state court in adjudicating a post-conviction review petition
may give rise to both a due process violation and relief from the exhaustion requirement. In
deciding whether delay excuses exhaustion, courts consider the history of the petitioner’s
attempts to obtain state remedies, including the length of the delay, whether there has been any
activity or progress in the state court action, whether the delay is attributable to the state or to the
petitioner, and prejudice to the petitioner. See, e.g., Pool v. Wyrick, 703 F.2d 1064, 1066–67 (8th
Cir. 1983) (per curiam) (where petitioners had not obtained any state-court ruling on postconviction motions after delays of more than two years, court of appeals remanded case to the
district court with directions to consider the habeas petition on the merits if the state court still
had not rendered a decision within a stated period of time); Lee v. Stickman, 357 F.3d 338, 343–
44 (3d Cir. 2004) (nearly eight-year delay); Harris v. Champion, 15 F.3d 1538, 1555, 1557 (10th
Cir. 1994) (delay of more than two years gives rise to a rebuttable presumption that exhaustion
should be excused).

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The Court has reviewed the state court file, as well as petitioner’s amended application
for post-conviction relief, Bookwalter v. Missouri, No. 11SD-CC00033 (35th Judicial District,
Stoddard County Court). In his amended motion, petitioner argues that he was denied his rights
to effective assistance of counsel, a fair trial, due process of law, and to be free from cruel and
unusual punishment in violation of the Fifth, Sixth and Fourteenth Amendments of the United
States Constitution.
Petitioner raises multiple claims for relief.

He claims that the prosecutor failed to

disclose, prior to trial that a weapon had allegedly been used in the commission of the charged
crime. Petitioner claims that his trial attorney was ineffective for: (1) failing to call key defense
witnesses; (2) failing to interview and/or call expert witnesses; (3) failing to make certain
objections to evidence introduced at trial (that petitioner purportedly had a gun during the crime)
and for the fact that petitioner was brought into the courtroom in shackles; (4) failing to engage
in adequate discovery; (5) failing to advise certain witnesses that they could not testify about
certain topics according to the rape shield exception; (6) misleading petitioner into thinking that
the jury engaged in the sentencing decision which caused him not to accept a plea deal; (7)
failing to object to the prosecutor’s inability to prove all of the elements of the crime, namely
that the victim was 14 years of age; (8) failing to show up at a polygraph examination to
represent petitioner; and (9) failing to object to certain jury instructions and/or object to the
mention of an unnamed and un-prosecuted co-defendant.
Petitioner additionally claims that the trial Judge engaged in a due process violation when
the Judge made petitioner’s counsel go to trial even though trial counsel admitted he was not
prepared to proceed to trial.

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Last, petitioner asserts that his appellate counsels was ineffective because he “only raised
one issue on appeal” because “he would not listen to me” and raise additional grounds.
The Court finds that the nearly seven-year delay exercised by the post-conviction court
excuses the required exhaustion required in 28 U.S.C. § 2254(b)(1)(A), and petitioner’s case
should be considered on the merits at this time.
Further, it appears from the facts alleged in the petition that the Court and petitioner
would benefit from appointment of counsel to represent petitioner, who is proceeding pro se.
Therefore, the Court will appoint counsel in this matter. See 28 U.S.C. § 1915(e)(1).
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk is directed to appoint Kevin Schreiner as
Pro Bono Counsel to petitioner in this action. A separate Notice of Appointment of Pro Bono
Counsel shall be entered by the Clerk.
IT IS FURTHER ORDERED that appointed counsel shall have forty-five (45) days
from the date of this Memorandum and Order to file an amended petition in this action.
IT IS FURTHER ORDERED that a Case Management Order will be entered by
separate Order of the Court.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 7th day of December, 2017.

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