Howard v. Lawson
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED petitioners request to proceed in forma pauperis [Doc. # 2 ] is GRANTED. IT IS FURTHER ORDERED that petitioner shall show cause, in writing and no later than thirty (30) days from the date of this Order, why this action should not be dismissed as time-barred. IT IS FURTHER ORDERED that if petitioner fails to comply with this Order, this action will be dismissed. Signed by District Judge John A. Ross on 12/1/17. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LARRY T. HOWARD,
No. 4:17-CV-2791 JAR
MEMORANDUM AND ORDER
This matter is before the Court on petitioner=s application for writ of habeas corpus brought
pursuant to 28 U.S.C. § 2254. The petition appears to be barred by § 2254’s one-year limitations
period, and the Court will order petitioner to show cause why the petition should not be dismissed.
On June 2, 2014, petitioner pled guilty to eight counts each of burglary in the second
degree, property damage in the second degree and misdemeanor theft/stealing. See State v.
Howard, No. 1222-CR06857-01 (22nd Judicial Circuit, St. Louis City Court). Petitioner was
sentenced to a total of five (5) years’ imprisonment. Petitioner did not file a direct appeal of his
conviction or sentence, nor did he file any post-conviction appeals. Petitioner filed the instant
application for habeas corpus relief by placing his petition in the prison mailing system at
Farmington Correctional Center on November 17, 2017.
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-1
(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
(2) The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.
The instant petition has been filed more than two years after petitioner=s state court
judgment of conviction became final on or about mid-June of 2015. As a result, the Court will
order petitioner to show cause why the petition should not be dismissed as time-barred. See Day
v. McDonough, 547 U.S. 198, 209 (2006) (district court must give notice to petitioner before sua
sponte dismissing petition as time-barred).
IT IS HEREBY ORDERED petitioner’s request to proceed in forma pauperis [Doc. #2]
IT IS FURTHER ORDERED that petitioner shall show cause, in writing and no later
than thirty (30) days from the date of this Order, why this action should not be dismissed as
IT IS FURTHER ORDERED that if petitioner fails to comply with this Order, this action
will be dismissed.
Dated this 1st day of December, 2017.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Although petitioner argues in a conclusory fashion that he suffered mental health difficulties
making it hard for him to follow through with exhausting his state court remedies in a timely
manner, he has failed to attach any relevant evidence of his mental health problems, such as a
competency evaluation done while he was in prison, or copies of his mental health treatment
documentation at the prison where he was being held. The Court has reviewed his state court
criminal trial on Missouri.Case.Net and found that petitioner was not subjected to a competency
evaluation in his state criminal proceedings. Thus, there is no evidence available to the Court at
this time that equitable tolling of the statute of limitations should be available to petitioner.
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