Burgess v. State of Missouri

Filing 6

OPINION, MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioner' s motion for leave to proceed in forma pauperis (Docket No. 2) is GRANTED. IT IS FURTHER ORDERED that petitioners motion for appointment of counsel (Docket No. 3) is DENIED AS MOOT. IT IS FURTHER ORDERED that petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 (Docket No. 1) is DENIED AND DISMISSED without prejudice for failure to exhaust state remedies. See 28 U.S.C. 2254(b)(1)(A). A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge Henry Edward Autrey on October 13, 2020. (MCB)

Case: 4:20-cv-01447-NAB Doc. #: 6 Filed: 10/13/20 Page: 1 of 6 PageID #: 156

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
COREY BURGESS,
Petitioner,
v.
STATE OF MISSOURI,
Respondent.

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No. 4:20-cv-01447-NAB

OPINION, MEMORANDUM AND ORDER
This matter comes before the Court on review of petitioner Corey Burgess’s petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1). For the reasons discussed
below, the petition will be denied and dismissed for failure to exhaust state remedies. See 28 U.S.C.
§ 2254(b)(1)(A).
Background
Petitioner is a self-represented litigant who is currently incarcerated at the Central Arizona
Florence Correctional Center in Florence, Arizona. On October 18, 2016, a grand jury indictment
was filed, charging petitioner with kidnapping, second-degree rape, second-degree sodomy, and
third-degree domestic assault. State of Missouri v. Burgess, No. 1622-CR03886-01 (22nd Jud. Cir.,
St. Louis City).1 Ultimately, a jury convicted him of two counts of third-degree domestic assault.
He was sentenced on November 8, 2018 to four years’ imprisonment on each count, the sentences
to run concurrently.

Petitioner’s underlying state court cases were reviewed on Case.net, Missouri’s online case management system.
The Court takes judicial notice of these public records. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (explaining
that district court may take judicial notice of public state records); and Stutzka v. McCarville, 420 F.3d 757, 760 n.2
(8th Cir. 2005) (stating that courts “may take judicial notice of judicial opinions and public records”).
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Petitioner filed a notice of appeal on November 9, 2018. The Missouri Court of Appeals
affirmed petitioner’s conviction and sentence on March 31, 2020. State of Missouri v. Burgess,
No. ED107333 (Mo. App. 2020).
Petitioner filed a pro se motion to vacate, set aside, or correct sentence pursuant to Missouri
Supreme Court Rule 29.15 on May 29, 2020. Burgess v. State of Missouri, No. 2022-CC09550
(22nd Jud. Cir., St. Louis City). The circuit court appointed the Missouri State Public Defender to
represent petitioner on August 25, 2020. An attorney entered his appearance on petitioner’s behalf,
and filed a motion for an extension of time in which to file an amended motion. On October 2,
2020, the circuit court entered an order giving petitioner’s counsel an additional thirty days to
prepare and file an amended motion. As of this time, the matter is still pending.
Petitioner filed the instant action on October 6, 2020.2
The Petition
Petitioner is a self-represented litigant who brings this action pursuant to 28 U.S.C. § 2254.
His petition is handwritten on a Court-provided form, with additional sheets totaling 147 pages.
The petition contains three grounds for relief: (1) that petitioner’s rights under the Fourth
Amendment have been violated; (2) that petitioner’s rights under the Sixth Amendment have been
violated; and (3) that petitioner’s rights under the Fifth Amendment have been violated. Among

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The Court notes that petitioner has filed two prior habeas corpus actions in the United States District Court for the
Eastern District of Missouri. Both were brought pursuant to 28 U.S.C. § 2241. Petitioner filed the first action on
December 29, 2017. In the petition, he argued that his constitutional rights had been violated because he had not
received a speedy trial, and because his bond was excessive. Burgess v. Glass, No. 4:17-cv-2951-NCC (E.D. Mo.).
The petition was denied and dismissed without prejudice on January 11, 2018, because petitioner had not exhausted
his state remedies. Petitioner did not appeal. The second petition was filed on September 18, 2019. Burgess v.
Jennings, No. 4:19-cv-2599-NCC (E.D. Mo.). In this petition, petitioner argued that his rights to due process and a
speedy trial had been violated. The petition was dismissed without prejudice on January 22, 2020. Petitioner filed an
appeal. The United States Court of Appeals affirmed on June 18, 2020. Burgess v. Jennings, No. 20-1303 (8th Cir.
2020).

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other things, petitioner seeks a ruling that his state court judgment violates the United States
Constitution.
Discussion
As noted above, petitioner is a self-represented litigant who brings this action pursuant to
28 U.S.C. § 2254, alleging that his state court conviction in State of Missouri v. Burgess, No. 1622CR03886-01 (22nd Jud. Cir., St. Louis City) violates the United States Constitution. For the reasons
discussed below, the petition will be dismissed for failure to exhaust state remedies.
A. Exhaustion
A petitioner in state custody seeking relief pursuant to 28 U.S.C. § 2254 must first exhaust
available state remedies before pursuing federal habeas relief. Wayne v. Missouri Bd. of Probation
& Parole, 83 F.3d 994, 996 (8th Cir. 1996). See also White v. Wyrick, 651 F.2d 597, 598 (8th Cir.
1981) (stating that “[i]t is elementary that a § 2254 petitioner must exhaust available state remedies
before he is entitled to relief in federal court”). This provides the state an “opportunity to pass upon
and correct alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29
(2004). The exhaustion requirement also prevents disruption of state judicial proceedings. Rose v.
Lundy, 455 U.S. 509, 517 (1982).
To exhaust state remedies, a petitioner must fairly present his claims in each appropriate
state court. Nash v. Russell, 807 F.3d 892, 898 (8th Cir. 2015). See also Randolph v. Kemna, 276
F.3d 401, 403 (8th Cir. 2002) (stating that petitioner “must give the state courts one full opportunity
to resolve any constitutional issue by invoking one complete round of the state’s established
appellate review process”); and Wayne, 83 F.3d at 998 (stating that “[a]ll that is required to satisfy
the exhaustion requirement is that the federal claims be fairly presented to the state courts in one
full round of litigation”). This requires the petitioner to submit not only the facts, but also the

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substance of his federal habeas claim to the state court. Abdullah v. Groose, 75 F.3d 408, 411 (8th
Cir. 1996). Specifically, in order “to satisfy the ‘fairly presented’ requirement, a petitioner is
required to refer to a specific federal constitutional right, a particular constitutional provision, a
federal constitutional case, or a state case raising a pertinent federal constitutional issue.” Barrett
v. Acevedo, 169 F.3d 1155, 1161-62 (8th Cir. 1999). “It follows, of course, that once the federal
claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.”
Vasquez v. Hillery, 474 U.S. 254, 257 (1986).
In this case, petitioner has not completed the full round of Missouri’s appellate review
process. While he has completed direct review, he has only recently filed a state postconviction
motion. See Burgess v. State of Missouri, No. 2022-CC09550 (22nd Jud. Cir., St. Louis City). There
has been no ruling on that motion, much less an appeal from an adverse ruling. Instead, petitioner’s
attorney was just given thirty days to file an amended motion pursuant to Missouri Supreme Court
Rule 29.15. In short, the postconviction motion that petitioner initiated is still pending. Thus, it is
clear that petitioner has not exhausted his state remedies. If the Court were to intervene at this
point, it would deny the state an “opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights.” See Baldwin, 541 U.S. at 29. It would also disrupt the ongoing state
judicial proceedings. See Rose, 455 U.S. at 517. Such intervention is not permitted.
B. Summary Dismissal
Rule 4 of the Rules Governing § 2254 Cases for the United States District Courts provides
that a district court shall summarily dismiss a § 2254 petition if it plainly appears that the petitioner
is not entitled to relief. Here, petitioner has not demonstrated that he has exhausted his state
remedies, as he still has a postconviction motion pending in state court. Exhaustion is a prerequisite
to filing suit in federal court. See 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas

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corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be
granted unless it appears that…the applicant has exhausted the remedies available in the courts of
the State”). Because petitioner has not exhausted his state remedies, the petition must be denied
and dismissed.
C. Certificate of Appealability
The Court has considered whether or not to issue a certificate of appealability. In order to
issue such a certificate, the Court must find a substantial showing of the denial of a federal right.
See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). “A substantial showing is a showing
that issues are debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Petitioner
has not made such a showing, so the Court will not issue a certificate of appealability.
D. Motion to Proceed in Forma Pauperis
Petitioner has filed a motion for leave to proceed in forma pauperis. (Docket No. 2). Having
reviewed the motion and the financial information submitted in support, the Court finds that it
should be granted.
E. Motion to Appoint Counsel
Petitioner has filed a motion to appoint counsel. (Docket No. 3). The motion will be denied
as moot as the petition is being dismissed for failure to exhaust state remedies.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in forma
pauperis (Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel
(Docket No. 3) is DENIED AS MOOT.

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IT IS FURTHER ORDERED that petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Docket No. 1) is DENIED AND DISMISSED without prejudice for failure
to exhaust state remedies. See 28 U.S.C. § 2254(b)(1)(A). A separate order of dismissal will be
entered herewith.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
Dated this 13th day of October, 2020.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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