King v. Prudden

Filing 6

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioners application for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 is DENIED AND DISMISSED as time-barred. Rule 4 of the Rules Governing Habeas Corpus Proceedings. IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability. See 28 U.S.C. § 2253. Signed by District Judge Jean C. Hamilton on 11/26/18. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEMARCO KING,

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Petitioner,
v.
DOUG PRUDDEN,
Respondent.

No. 4:18-CV-663 NCC

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s response to the order to show cause. 1
Having carefully reviewed petitioner’s response, the Court concludes that his arguments are
without merit, and that the instant action is time-barred under 28 U.S.C. § 2244.
Background
On January 7, 2016, petitioner pled guilty to felony stealing in the Circuit Court of St.
Louis County, Missouri. See State v. King, No. 14SL-CR04770-01 (21st Judicial Circuit, St. Louis
County Court). On that same date petitioner was sentenced to a seven year term of imprisonment
in the Missouri Department of Corrections. The court suspended the execution of the sentence
(“SES”), and retained jurisdiction over petitioner for two years, pursuant to Mo.Rev.Stat. §
559.115 under the Missouri Shock Incarceration Program in order to effectuate petitioner’s entry
into a Long Term Treatment Program.

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On October 17, 2018, the Court ordered petitioner to show cause as to why the Court should not
dismiss the instant application for writ of habeas corpus as time-barred.
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On February 22, 2017, on the Court’s own motion, the remainder of the sentence imposed
upon petitioner was suspended and he was placed on probation for five years under the supervision
of the Missouri Department of Probation and Parole.
Petitioner did not appeal his sentence or file a timely motion for post-conviction relief.
However, on May 22, 2017, petitioner filed a petition for writ of habeas corpus pursuant to
Missouri Supreme Court Rule 91 in the Circuit Court for Moniteau County. See King v. Prudden,
No. 17MT-CC00022 (26th Judicial Circuit, Moniteau County Court).
In his application for writ of habeas corpus, petitioner asserted that his conviction for
stealing in State v. King, No. 14SL-CR04770-01 (21st Judicial Circuit, St. Louis County Court),
was unconstitutional because “value is not an element of felony stealing” pursuant to Mo.Rev.Stat.
§ 570.030. Petitioner based his argument on the reasoning espoused in Missouri v. Bazell, 497
S.W.3d 263 (Mo. banc 2016). Nonetheless, his state habeas corpus action was denied on
November 1, 2017.
Petitioner placed his application for writ of habeas corpus brought pursuant to 28 U.S.C. §
2254 in the prison mailing system on April 24, 2018.
Discussion
In the present action, petitioner once again asserts that his prior state convictions for felony
stealing were unlawful and constituted a manifest injustice pursuant to Missouri v. Bazell, 497
S.W.3d 263 (Mo. banc), which was decided by the Missouri Supreme Court on September 20,
2016.
In Bazell, the appellant was convicted of various stealing offenses under Mo.Rev.Stat.
§ 570.030, including two convictions for stealing firearms. Id. at 265. His convictions for stealing
firearms were enhanced to felonies pursuant to § 570.030.3(3)(d). On appeal, the Missouri
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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. Id. at 267. The court avoided deciding any constitutional issues.
There can be no doubt that petitioner is over a year and a half late in filing his § 2254 in this
Court. A Missouri conviction becomes final ten days after the judgment is entered. Mo. R. Civ. P.
§ 81.04(a).2 Petitioner’s judgment was entered on January 7, 2016, thus it was final on January 17,
2016, and the statute of limitations lapsed a year later on January 17, 2017.
To the extent that petitioner believes that Bazell should apply to somehow restart the
statute of limitations, petitioner is incorrect in his analysis. As set forth in the recent Missouri
Supreme Court case of Fite v. Johnson, ---S.W.3rd ---, 2017 WL 4930368, *1-2 (Mo. banc),
Section 570.030.3(1) purports to enhance the offense of stealing from a
misdemeanor to a felony when “the value of property or services is an element” and
the value of the stolen property or services exceeds $500 but is less than $25,000.
The value of the stolen property or services, however, “is not an element of the
offense of stealing.” Bazell, 497 S.W.3d at 266. Although State v. Passley, 389
S.W.3d 180, 182–83 (Mo. App. 2012), held stealing is a felony when the value of
the stolen property exceeds $500, Bazell held this interpretation “should no longer
be followed” because the felony enhancement does not apply to the offense of
stealing as defined by § 570.030.1. Bazell, 497 S.W.3d at 267 n.3; State v. Smith,
522 S.W.3d 221, 230 (Mo. banc 2017). As this Court held in State ex rel.
Windeknecht v. Mesmer, SC96159, ––– S.W.3d ––––, 2017 WL 4479200 (Mo.
banc Oct. 5, 2017), this Court's interpretation of § 570.030.3(1) first enunciated in
Bazell applies prospectively only, except in those cases pending on direct
appeal. (emphasis added)
In light of the aforementioned, the Court declines to apply a retroactivity analysis to § 2244(d).
In his response to the Order to Show Cause, petitioner asserts that his statute of limitations
should not have started until May 22, 2017, the date he first contested his conviction in Missouri
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Under Missouri law a suspended execution of sentence is an entry of judgment, because the
sentence has been assessed and only the act of executing the sentence has been suspended. E.g.,
Missouri v. Nelson, 9 S.W.3d 687, 688 (Mo. Ct. App. 1999).
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State Court by filing his Rule 91in Montineau County Court. This is simply not the law in the State
of Missouri, as recounted above, and petitioner has not shown otherwise in his response to show
cause.
Petitioner also argues that at the time he accepted his plea on his original state sentence, he
lacked the knowledge and foresight to understand the legal ramifications of the plea. Petitioner
also asserts that he had ineffective assistance of counsel, his imprisonment has far exceeded just
punishment under the law, and he believes his Constitutional rights were violated in the course of
his criminal proceedings. Petitioner appears to be seeking equitable tolling as an excuse for
violating the statute of limitations.
Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.@ Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable
tolling is Aan exceedingly narrow window of relief.@ Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir.
2001).

Pro se status, lack of legal knowledge or legal resources, confusion about or

miscalculations of the limitations period, or the failure to recognize the legal ramifications of
actions taken in prior post-conviction proceedings are inadequate to warrant equitable tolling.@
Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004) (quotation marks omitted); Kreutzer v.
Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (holding that Aeven in the case of an unrepresented
prisoner alleging a lack of legal knowledge or legal resources, equitable tolling has not been
warranted@).
Petitioner’s vague assertions about ineffective assistance of counsel are clearly insufficient
to allow equitable tolling. The Eighth Circuit Court of Appeals has repeatedly held that faulty legal

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assistance alone does not warrant equitable tolling. See Beery v. Ault, 312 F.3d 948, 951 (8th
Cir.2002) ("[i]neffective assistance of counsel generally does not warrant equitable tolling");
Sellers v. Burt, 168 Fed.Appx. 132, 133 (8th Cir.) (unpublished opinion) (rejecting petitioner's
argument that the statute of limitations should be tolled "because his state post-conviction attorney
failed to communicate with him and did not send his case file"); Greene v. Washington, 14
Fed.Appx. 736, 737 (8th Cir.2001) (rejecting equitable tolling argument based on alleged mistake
by post-conviction attorney) (unpublished opinion).
Moreover, this Court cannot begin to examine petitioner’s assertions regarding his belief
that his Constitutional rights were violated during this trial court process when he has not first
shown that he was diligently pursuing his rights and some extraordinary circumstance prevented
him from presenting his claims to this Court in a timely fashion. Holland v. Florida, 560 U.S.
631, 649 (2010). Similarly, petitioner’s assertions that his sentence violates the Eighth
Amendment’s cruel and unusual punishment clause cannot serve as an equitable tolling argument
in this instance.
As petitioner has failed to give an equitable reason why his untimeliness should be
excused, the Court must dismiss the petition under 28 U.S.C. § 2244.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s application for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254 is DENIED AND DISMISSED as time-barred. Rule 4 of
the Rules Governing Habeas Corpus Proceedings.

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IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability.
See 28 U.S.C. § 2253.
Dated this 26th day of November, 2018.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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