Engel v. Adams

Filing 11

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED and DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that no certificate of appealability shall issue. Signed by District Judge John A. Ross on 10/6/2021. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
-EASTERN DIVISION
JOSEPH MICHAEL DEVON ENGEL,
Petitioner,
V.

RICHARD ADAMS,
Respondent.

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No. 4:21-CV-926 NCC

MEMORANDUM AND ORDER
This matter is before the Court upon petitioner's responses to this Court's order to show
cause as to why this action should not be dismissed for failure to timely exhaust state remedies.
ECF Nos. 7, 8, 9. Having reviewed the petitioner's responses, and for the reasons discussed below,
the Court will deny and dismiss the instant petition for writ of habeas corpus.

Background
Petitioner is a self-represented litigant who is currently being held at the Missouri Eastern
Correctional Center. On July 26, 2021, petitioner filed the instant petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner argues four grounds for relief: (1) failure to
be notified that he was to be charged as a prior and persistent offender; (2) "video and audio messed
up" during probation revocation hearing; (3) "due process was violated due to Covid-19 and video
and audio;" and (4) ineffective assistance of counsel at sentencing hearing. 1
Petitioner indicated he was convicted in the "Jefferson County Courts, Hillsboro'' and cited
to case number 18JE-CR03639. Review of the records from Case.net, Missouri's online case

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The Court notes that petitioner previously filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his conviction and sentencing. See Engel v. Payne, Case No. 4:20-CV-1211-DDN (E.D. Mo.). On
December 14, 2020, the action was dismissed without prejudice for petitioner's failure to respond to the Court's Order
to Show Cause as to why his petition should not be dismissed for failure to exhaust available state remedies.

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management system, 2 reflects that petitioner pied guilty on July 19, 2019 to Burglary in the second
degree in violation of Mo. Rev. Stat.§ 569.170 (Count I); Property Damage in the first degree in
violation of Mo. Rev. Stat. § 569.100 (Count II); two counts of Tampering in the first degree in
violation of Mo. Rev. Stat. § 569.080 (Counts III and VII); Resisting Arrest in violation of Mo.
Rev. Stat.§ 575.150 (Count IV); Burglary in the second degree (Count V); and Property Damage
in the first degree in violation of Mo. Rev. Stat. § 569.100 (Count VI). See State v. Engel, 18JECR03 639-01.
On November 1, 2019, the Circuit Court of Jefferson County, 23rd Judicial Circuit,
sentenced petitioner to concurrent terms of ten years' imprisonment on Counts I, III, V, and VII,
and seven years' imprisonment on Counts II, IV, and VI in the Missouri Department of
Corrections. The court suspended execution of the sentences and placed petitioner on probation,
which was subsequently revoked on August 6, 2020 due to a probation violation. Id The circuit
court ordered the execution of the previously-imposed sentences. Id
Petitioner appeared to indicate in his form petition for habeas corpus relief that he did not
seek direct appeal of his conviction or probation revocation, but did file a motion to vacate, set
aside or correct judgment:
9. If you did appeal, answer the following:
(a) Name of court: Jefferson County Courts Missouri
(b) Docket or case number (if you know): 21JE-CC00031
(c) Result: waited to[o] long they said
(d) Date ofresult (if you know): not sure
(e) Citation to the case (if you know): Form 40
(f) Grounds raised: Due Process, Inefffec]tive of Counsel, Covid, Judge
Being UnprofI]es[sio]nal and Court Room
(g) Did you seek further review by a higher state court? Yes _
No

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ECF No. 1 at 2.

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See Levy v. Ohl, 477 F.3d 988 (8th Cir. 2007) (district court may take judicial notice of public state records); Stutzka
v. McCarville, 420 F.3d 757, 760 n. 2 (8th Cir. 2005) (courts "may take judicial notice of judicial opinions and public
records").

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Records from Case.net reflect that petitioner filed a motion to vacate, set aside or correct
judgment and sentence on December 28, 2020. In response, the State of Missouri filed a motion to
dismiss arguing his motion to vacate was untimely pursuant to Missouri Court Rule 24.035 because
it was filed more than 180 days after the date his sentence was entered. See Engel v. State, Case
No. 21 JE-CC00031. The motion appeared to be pending at the time the Court performed its initial
review of the instant petition.
On July 30, 2021, this Court directed petitioner to show cause as to why this action should
not be dismissed for his failure to exhaust administrative remedies. ECF No. 6. The Court
explained that it could find no evidence that petitioner timely raised the arguments which he brings
here before a Missouri state court. Specifically, petitioner did not appear to have timely appealed
his conviction or probation revocation using the proper state court remedies.

Petitioner's Show Cause Responses
On August 12, 2021, petitioner filed a response, titled "Motion to Show Cause that I have
exhausted all claims in State Court." ECF No. 7. Petitioner does not address any of the exhaustion
issues discussed in the Court's show cause order. Instead, he merely states that he consulted with
his public defender who informed him that his state remedies were exhausted. Attached to his
response is the circuit court's Memorandum addressing the State of Missouri's motion to dismiss
in State v. Engel, 21JE-CC00031. The Memorandum states in its entirety:
State's Motion to Dismiss called and heard.
State's Motion is granted due to untimely filing of prose motion.
Motion granted over Movant's objection.
ECF No. 7 at 6.
On September 3, 2021, petitioner filed two additional one-page handwritten documents,
titled "Petitioner Showing Cause" and "Motion for Case to be Open." ECF Nos. 8, 9. The filings
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are difficult to decipher, but he appears to complain that his Miranda rights have not been read to
him, his lawyers have been ineffective, he should not have been sentenced as a prior and persistent
offender, he was a victim of identity theft, his criminal sentence was incorrect, he should be
released from incarceration because he has children, and he is being denied medical treatment.
Neither of these filings address any of the exhaustion issues discussed in the Court's show cause
order.
Petitioner also filed a separate one-page letter to the Court requesting copies of "all [his]
IRRs or Grievances" for "any and all civil cases, [he has filed] that have to do with any MODOC
or County suits." ECF No. 10. This letter appears to be unrelated to his instant petition for habeas
cog,us. 3
Discussion

According to the state court documents available on Case.net and the circuit court's
Memorandum attached to petitioner's response to this Court's show cause order, it is evident
petitioner has failed to timely challenge the validity of his conviction and sentence pursuant to
Missouri Supreme Court Rule 24.035, or his probation revocation.
Rule 24.035(a) provides, in relevant part:
A person convicted ofa felony on a plea of guilty and delivered to the custody of
the department of corrections who claims that the conviction or sentence imposed
violates the constitution and laws of this state or the constitution of the United
States, including claims of ineffective assistance of trial and appellate counsel, that
the court imposing the sentence was without jurisdiction to do so, or that the
sentence imposed was in excess of the maximum sentence authorized by law may
seek relief in the sentencing court pursuant to the provisions of this Rule 24.035.
This Rule 24.035 provides the exclusive procedure by which such person may seek
relief in the sentencing court for the claims enumerated.
Mo. Sup.Ct. R. 24.035(a).

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The Court notes that since September 2020, petitioner has filed over one-hundred-fifty (150) lawsuits in this Court,
which is an abuse of the judicial process. As of this date, most of his lawsuits have been dismissed as frivolous,
malicious and/or for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B).

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Petitioner did not file a direct appeal challenging the validity of his conviction and
sentence. "If a petitioner fails to exhaust state remedies and the court to which he should have
presented his claim would now find it procedurally barred, there is a procedural default." Sloan v.
Delo, 54 F.3d 1371, 1381 (8th Cir. 1995). Petitioner defaulted his claims by failing "to present
them to the Missouri courts at any stage of his direct appeal or his post-conviction proceedings."
Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir.1997). Although petitioner filed a motion to vacate,
the circuit court determined it was untimely. The "failure to file a timely Rule 24.035
postconviction motion constitutes" a procedural default. Weeks v. Bowersox, 119 F.3d 1342, 1350
(8th Cir. 1997). Additionally, petitioner has provided no evidence that he has challenged his
probation revocation in state court.
A petitioner under § 2254 may avoid procedural default only by showing there was cause
for the qefault and resulting prejudice, or a miscarriage of justice will result from enforcing the
procedural default in the petitioner's case. See Wainwright v. Sykes, 433 U.S. 72, 87, 90-91 (1977).
In order to establish cause, the petitioner must show "some objective factor external to the defense"
prevented his compliance with a state procedural rule. Murray v. Carrier, 477 U.S. 478, 488
(1986). Petitioner has failed to show cause for the default and resulting prejudice, or a miscarriage
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of justice. To establish a fundamental miscarriage of justice, petitioner must show he is actually
innocent, which he has not done. Storey v. Roper, 603 F.3d 507, 523 (8th Cir. 2010). The Court
will dismiss the instant petition as procedurally defaulted. Petitioner has failed to establish
cause for his failure to timely raise his claims before the state courts. His statement that he properly
exhausted his claims in state court is contradicted by the state court's records.

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Accordingly,
IT IS HEREBY ORDERED that the Petition Under 28 U.S.C. § 2254 for Writ of Habeas

Corpus is DENIED and DISMISSED without prejudice. A separate order of dismissal will be
entered herewith.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.

Dated this

/4_ of October, 2021.
~ay

.ROSS
D STATES DISTRICT filDGE

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