Valentine v. Schmitt
MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability. A separate Order of Dismissal will accompany this Memorandum and Order. Signed by Magistrate Judge Patricia L. Cohen on 2/18/2021. (CBL)
Case: 4:20-cv-01025-PLC Doc. #: 9 Filed: 02/18/21 Page: 1 of 7 PageID #: 98
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MEMORANDUM AND ORDER
This matter is before the Court on review pursuant to 28 U.S.C. Section 2243 2 and Rule 4
of the Rules Governing Section 2254 Cases in the United States District Court (“Habeas Rules”) 3
of the petition and attachments to the petition filed by Tyrone Valentine, a federal prisoner, under
28 U.S.C. Section 2254. For the following reasons, the Court dismisses this habeas proceeding
In his Petition, Petitioner named the State of Missouri and Attorney General of the State of Missouri as
Respondents. In more recent documents, Eric Schmitt, the Missouri Attorney General, is identified as the only
Respondent and entered an appearance in this case. Neither party has raised a challenge to the identification of
Respondent(s) in this proceeding.
In relevant part, Section 2243 states:
A court, justice or judge entertaining an application for a writ of habeas corpus shall
forthwith award the writ or issue an order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application that the applicant or person detained is
not entitled thereto.
Habeas Rule 4 states, in relevant part, if a judge examining a habeas petition finds that “it plainly appears
from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition.”
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due to the absence of subject matter jurisdiction. 4
See Fed. R. Civ. P. 12(h)(3); 5 Habeas Rules
4 and 12. 6
The petition and its attachments reveal the following.
State court (1985 guilty plea)
In April 1985, in the Circuit Court for the City of St. Louis City, Missouri, Petitioner
pleaded guilty to two counts of assault in the first degree.
The 1984 indictment attached to the
petition 7 charges that the first assault offense arose out of a September 1982 altercation in which
Petitioner attempted to kill or cause serious physical injury by shooting at another person by means
of a dangerous instrument (“1982 assault”).
With respect to the second first-degree assault
offense, the 1984 indictment charges that Petitioner attempted to kill or cause serious physical
injury by shooting a different person with a pistol in March 1984 (“1984 assault”).
in the May 1985 sentence and judgment attached to the petition, the state court imposed concurrent
ten-year terms of imprisonment for the two first-degree assault offenses.
represented by an attorney throughout the state court proceeding resulting in the challenged plea
The parties consented to a United States Magistrate Judge’s exercise of authority in this matter under 28
U.S.C. § 636(c).
Federal Rule of Civil Procedure 12(h)(3) provides: “If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”
Habeas Rule 12 states that “[t]he Federal Rules of Civil Procedure, to the extent that they are not
inconsistent with any statutory provisions or the[ Habeas] rules, may be applied to a proceeding under the[ Habeas]
Petitioner states that he “was indicted on December 10, 1984.” Pet’n at 6 [ECF No. 1]. The copy of
the 1984 indictment attached to the petition [ECF No. 1-1 at 6] has an endorsement at the bottom stating “Received
and Filed this 31st day of May, 1984” and a “Filed” stamp dated December 10, 1984.
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and sentencing. 8
Petitioner did not file a direct appeal and finished serving his concurrent ten-
year sentences in 1994.
Not until “mid-November 2018” did Petitioner file a post-conviction
proceeding in state court challenging his 1985 conviction.
B. Grounds for relief in and status of this habeas proceeding
In 2020, after the completion of his state court post-conviction proceedings, Petitioner filed
this federal habeas proceeding under Section 2254 to challenge his 1985 state court conviction as
violating his Fourteenth Amendment rights because he is “actually innocent” of each of the two
first-degree assault offenses.
In his first ground, Petitioner argues that, with respect to the 1982
assault, he was not given the benefit of an October 1984 statutory change in the classification of
the offense and the concomitant reduction in the applicable minimum sentence due to the absence
of any “serious physical injury” resulting from the assault.
For his second ground, Petitioner
contends he “reasonably believed” the circumstances of the 1984 assault justified self-defense and
he lacked intent to cause death, an element of the charged offense.
Petitioner additionally asserts that “the lingering collateral consequence of his [1985 state
court conviction] was utilized to enhance[ his] federal sentence pursuant to the Armed Career
Criminal Act [(“ACCA”)] . . . 18 U.S.C. § 924(e)(1)” and “the continued use to enhance his federal
sentence based upon this INVALID prior Assault conviction violates [his] Fourteenth Amendment
In his petition, Petitioner stated he “did not appeal [from the 1985 conviction and sentence] “because
counsel did not advise me of any appealable claims in which to appeal.” Pet’r pet’n at 2 ¶ I.3(B) [ECF No. 1].
Additionally, Petitioner identifies an assistant public defender who “represented [him] in the following stages of the
judgment attacked herein:” preliminary hearing, arraignment and plea, and sentencing. Id. at 11 ¶¶ IV(A), IV(B),
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This Court granted Petitioner in forma pauperis status and entered a show cause order
giving Petitioner the opportunity to demonstrate why this proceeding should not be dismissed as
Petitioner filed his response to the show cause order. This Court has not yet issued,
pursuant to Section 2243, an order “directing the respondent to show cause why the writ should
not be granted.”
Federal court (2015 guilty plea)
The federal sentence Petitioner mentions in his habeas petition was imposed in June 2015
after Petitioner pleaded guilty in January 2015 to being a felon in possession of nine-millimeter
See United States v. Valentine, No. 4:14CR108 ERW (E.D. Mo. filed Apr. 4,
The federal court considered the 1985 state court conviction as constituting two prior
offenses for purposes of applying the ACCA, varied below the applicable sentencing guidelines
range, and imposed the statutory minimum of fifteen years’ incarceration, followed by three years
of supervised release.
See, e.g., id. sentencing tr. at ECF No. 110.
The Eighth Circuit, in
relevant part, found no error in the district court’s use of the 1985 conviction as two predicate
Although Petitioner does not set forth in his petition the case number or attach to his petition materials
from the federal criminal proceeding to which he refers in his petition, Section 2243 does not prohibit this Court from
judicial notice in relation to the application of the records underlying the petitioner’s commitment.
Dorsey v. Gill, 148 F.2d 857, 869, 870 [(D.C. Cir. 1945)]. And this right to take judicial notice
extends not only to the records of the court in which the application for the writ is being made but
to those of other courts as well. Wells v. United States, 318 U.S. 257, 260 [(1943) (per curiam)].
Jones v. Attorney Gen. of the United States, 278 F.2d 699, 701 (8th Cir. 1960) (per curiam) (addressing whether to
issue a certificate of appealability from the “denial on its face” of a habeas petition filed by a federal prisoner).
Importantly, the Court may “take judicial notice, whether requested or not * * * of its own records and files, and facts
which are part of its public records * * *.” United States v. Jackson, 640 F.2d 614, 617 (8th Cir. 1981) (internal
quotation marks and citation omitted) (alterations in original); accord Cravens v. Smith, 610 F.3d 1019, 1029 (8th Cir.
2010) (citing In re Papatones, 143 F.3d 623, 624 n. 3 (1st Cir.1998) for the proposition that “[t]he court may take
judicial notice of its own orders and of records in a case before the court. . . .”); Stutzka v. McCarville, 420 F.3d 757,
760 n. 2 (8th Cir. 2005) (a court “may take judicial notice of judicial opinions and public records”).
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offenses under the ACCA and in the district court’s rejection of Petitioner’s constitutional
challenges to the use of the 1985 conviction for sentencing.
United States v. Valentine, 637 Fed.
Appx. 961, 962 (8th Cir. 2016) (unpublished per curiam decision). With respect to Petitioner’s
constitutional challenges, the Eighth Circuit reasoned there was no constitutional error: “because
[Petitioner’s] sentence was not increased under the ACCA’s residual clause; and circuit law
forecloses [Petitioner]’s arguments that the ACCA violates the Sixth Amendment, . . . the Eighth
Amendment, . . . the separation of powers, . . . and due process . . . .” Id. Petitioner is serving
the sentence imposed by the federal court.
A. Subject matter jurisdiction
“The federal habeas statute gives the United States district courts jurisdiction to entertain
petitions for habeas relief only from persons who are ‘in custody in violation of the Constitution
or laws or treaties of the United States.’” Maleng v. Cook, 490 U.S. 488, 490 (1989) (per curiam)
(emphasis in original); see also id. at 494 (“Our holding is limited to the narrow issue of ‘custody’
for subject-matter jurisdiction of the habeas court”).
“[T]he habeas petitioner must be ‘in
custody’ under the conviction or sentence under attack at the time [the] petition is filed.” Id. at
490-91 (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).
When a petitioner does not satisfy the in-custody requirement with respect to the
challenged conviction or sentence at the time the petitioner files the habeas petition, the district
court lacks subject matter jurisdiction over the habeas proceeding. Weaver v. Pung, 925 F.2d
1097, 1099 (8th Cir. 1991) (citing Maleng, 490 U.S. 488). Importantly, “[a] person whose
sentence has fully expired at the time his petition is filed can[n]ot satisfy the custody requirement.”
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Id. (citing Maleng, 490 U.S. 491-92). This is true even when the fully expired sentence enhanced
a subsequent sentence, unless the challenge to the expired sentence is based on the failure to
appoint counsel for the petitioner in violation of the Sixth Amendment. Lackawanna Cnty. Dist.
Att’y v. Coss, 532 U.S. 394, 396-97, 403-05 (2001).
Here, Petitioner challenges a 1985 state court guilty plea to two first-degree assault charges
and the concurrent ten-year terms of imprisonment imposed with respect to that plea. Petitioner
was represented by an attorney throughout the challenged state court proceeding and completed
serving the sentence in 1994. Therefore, the concurrent sentences for the offenses to which
Petitioner pleaded guilty in 1985 are expired. Due to the expiration of the sentences imposed
during the challenged state court proceeding in which counsel represented Petitioner, Petitioner
does not satisfy the “in custody” jurisdictional requirement for pursuing a Section 2254 habeas
proceeding, even though the expired sentences were used to enhance a subsequently imposed
Under the circumstances, in particular the fact that the sentences imposed in the challenged
1985 proceeding, in which Petitioner was represented by counsel, are expired, this Court lacks
subject matter jurisdiction over this habeas proceeding under Section 2254. Due to the lack of
subject matter jurisdiction, the Court need not further address whether Petitioner timely filed this
federal habeas proceeding.
B. Certificate of appealability
The issuance of a certificate of appealability (“COA”) is required to appeal a final order in
a habeas proceeding under 28 U.S.C. Section 2254. 28 U.S.C. § 2253(c)(1); Fed. R. App.
22(b)(1). This COA-issuance-requirement is jurisdictional. Gonzalez v. Thaler, 565 U.S. 134,
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142 (2012) (citing Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)).
A COA may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal habeas court resolves a habeas
without reaching the [merits of the petitioner’s] underlying constitutional
claim[s], a COA should issue when . . . jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and
. . . jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Importantly, a court may “resolve the issue whose
answer is more apparent from the record and arguments.” Id. at 485.
The Court concludes jurists of reason would not find debatable the correctness of the
dismissal of Petitioner’s petition for failure to satisfy the “in custody” prerequisite to the Court’s
exercise of subject matter jurisdiction. Therefore, the Court will not issue a COA with respect to
any aspect of the dismissal of Petitioner’s petition.
Accordingly, after careful consideration,
IT IS HEREBY ORDERED that Petitioner’s application for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DISMISSED for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that the Court will not issue a Certificate of Appealability.
A separate Order of Dismissal will accompany this Memorandum and Order.
PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 18th day of February, 2021
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