Davis v. Bowersox et al
ORDER granting 14 motion to stay; granting 15 motion for leave to file an amended petition. Petitioner is directed to electronically file his amended petition [15-1] on or before January 31, 2017. All proceedings in this case are STAYED and t his case is further ADMINISTRATIVELY CLOSED to allow Davis to fully exhaust his claim under Miller and Montgomery in state court. Petitioner shall promptly notify the Court when the Missouri Supreme Court issues any decision related to his pending st ate habeas proceeding in Case No. SC96014. Should the Missouri Supreme Court dismiss Petitioners state habeas proceeding with directions to file the action in a lower court, the stay is conditioned upon Petitioner filing his petition with the appropriate court within thirty (30) days of that order. Signed on 1/26/2017 by District Judge Roseann Ketchmark. (Russell, Elizabeth)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
MICHAEL L DAVIS,
MICHAEL BOWERSOX, et al.,
ORDER (1) GRANTING PETITIONER’S MOTION FOR LEAVE TO FILE AMENDED
PETITION FOR HABEAS CORPUS, AND (2) GRANTING PETITIONER’S MOTION
TO STAY PROCEEDINGS
Before the Court is Petitioner Michael L. Davis (“Davis”) response (doc. 13) to the
Court’s Show Cause Order (doc. 12), a Motion to Stay Proceedings (doc. 14) and a Motion for
Leave to File Amended Petition for Writ of Habeas Corpus (doc. 15). Respondents have filed a
response in which they address all three filings as well as the merits of Davis’ amended petition.
(Doc. 21.) After careful consideration, the Court GRANTS Davis’ motions and further finds
that this case should be STAYED and ADMINISTRATIVELY CLOSED pursuant to the
principles set forth in Rhines v. Weber, 544 U.S. 269, 274 (2005).
Davis is currently in custody under a state-court judgment and files this federal habeas
proceeding pursuant to 28 U.S.C. § 2254. A jury convicted Davis of first degree murder and
armed criminal action in Jackson County Circuit Court, Case No. CR1996-72136.
On January 29, 1998, Davis was sentenced to consecutive terms of life without parole for the
murder conviction and 100 years’ imprisonment for the armed criminal action conviction. At the
time of the offense, Davis was seventeen years old. On February 23, 1999, Davis’ direct appeal
from the judgment of conviction was affirmed in State v. Davis, Cause No. WD55674; there was
no post-conviction proceeding.
More than a decade after his conviction and sentence, the United States Supreme Court
decided cases that limit the use of life-without-parole sentences for juvenile offenders. Davis
relies on two such cases, Miller v. Alabama, 132 S. Ct. 2455 (2012) and Graham v. Florida, 560
U.S. 48 (2010). The United States Supreme Court in Graham held that the Eighth Amendment’s
prohibition on cruel and unusual punishments bars the use of life-without-parole sentences for
juveniles convicted of non-homicide offenses. 560 U.S. 48. A fundamental principle in Graham
was that the imposition of the most severe penalties on juvenile offenders cannot proceed
without taking youth into consideration. Id. at 78. Two years later, the United States Supreme
Court in Miller held that the Eighth Amendment also forbids a sentencing scheme that mandates
life without parole for juvenile homicide offenders. 132 S. Ct. 2455. Miller emphasized that to
satisfy the Eighth Amendment, there must be an opportunity for individualized consideration
before imposing life without parole on a juvenile offender. Id. at 2475.
On June 19, 2013, Davis filed a petition for writ of habeas corpus in the Supreme Court
of Missouri, Case No. SC93475, asking that his sentence be brought in conformity with Miller
While the action was pending, the United States Supreme Court decided
Montgomery v. Louisiana, 136 S. Ct. 718 (2016), making Miller fully retroactive. In Davis’
habeas action, he argued that his sentence was unconstitutional (1) under Miller and Montgomery
because he was sentenced to mandatory life without parole as a juvenile homicide offender, and
(2) under Graham because he was sentenced to a de facto sentence of life without parole as a
juvenile on a non-homicide offense.
On March 15, 2016, the Missouri Supreme Court granted Davis’ petition in part. The
Missouri Supreme Court ordered that Davis would be eligible for parole on his life-withoutparole sentence once he has served twenty-five years; and all other claims were dismissed
without prejudice. Six days later, Davis filed the instant federal habeas action. Meanwhile, in
the state habeas action, Davis filed a motion for reconsideration or rehearing in which he argued
that the March 15, 2016 Order was in excess of the court’s authority, and that the order did not
satisfy Miller and Montgomery.
On July 13, 2016, a new Missouri law went into effect. Missouri’s Senate Bill No. 590
(“S.B. 590”), codified in Missouri Revised Statute § 558.047.1(1), provides that juvenile
offenders who have previously received a life-without-parole sentence may be considered for
parole after serving twenty-five years of their sentence. The statute reads as follows:
Any person sentenced to a term of imprisonment for life without eligibility for
parole before August 28, 2016, who was under eighteen years of age at the time
of the commission of the offense or offenses, may submit to the parole board a
petition for a review of his or her sentence, regardless of whether the case is final
for purposes of appeal, after serving twenty-five years of incarceration on the
sentence of life without parole.
Mo. Rev. Stat. § 558.047.1(1)
On July 19, 2016, the Missouri Supreme Court vacated its March 15, 2016 Order in light
of the enactment of S.B. 590. In that order, the Missouri Supreme Court denied Davis’ petition
and dismissed all pending motions as moot.
In the instant proceeding, Davis raises claims under (1) Miller and Montgomery and (2)
With respect to his claim under Miller and Montgomery, Davis argues that the
Missouri Supreme Court’s March 15, 2016 Order exceeded the court’s authority. After the
Missouri Supreme Court vacated that order on July 20, 2016, this Court directed Davis to show
cause why this action should not be dismissed as moot in light of the enactment of S.B. 590 and
the Missouri Supreme Court’s July 20, 2016 Order. The Court further directed that Davis
demonstrate exhaustion of state remedies for any portions of the petition Davis contends are not
moot. (Doc. 12.)
Davis filed his response to the Order on November 3, 2016 (doc. 13), and concurrently
filed a Motion to Stay Proceedings (doc. 14) and a Motion for Leave to File Amended Petition
for Writ of Habeas Corpus (doc. 15). The Court takes up the three filings in turn.
Davis’ Motion for Leave to File Amended Petition
The Court first considers Davis’ motion for leave to file an amended petition for writ of
habeas corpus. (Doc. 15.) Davis requests leave to amend under Rule 15(a)(2) of the Federal
Rules of Civil Procedure and attaches his amended petition as an exhibit to the motion
(doc. 15-1). The federal rules advance a liberal amendment policy. Rule 15 is applicable to this
proceeding by 28 U.S.C. § 2242, Rule 81(a)(4) of the Federal Rules of Civil Procedure and Rule
12 of the Rules Governing Section 2254 Cases in the U.S. District Courts. Rule 15(a)(2) states
that “a party may amend its pleading only with the opposing party’s written consent or the
court’s leave. The court should freely give leave [to amend] when justice requires.” Fed. R. Civ.
On the same day Davis filed the motion for leave to amend, Davis also filed a second
state petition for writ of habeas corpus, Case No. SC96014, in the Missouri Supreme Court. In
his second state habeas action, Davis raises a new contention that S.B. 590 violates the Missouri
and United States Constitutions, and further does not provide the remedy required by Miller and
Montgomery. Davis maintains that his proposed amended petition includes this new contention,
which conforms the pleading and claims with facts—the enactment of S.B. 590—which did not
exist at the time the original petition was filed. Respondent does not oppose Davis’ request to
amend his petition. Therefore, the Court finds that justice requires giving Davis leave to amend
The Court’s October 24, 2016 Show Cause Order
In response to the Court’s October 24, 2016 Order, Davis primarily argues that his
petition is not moot because S.B. 590 does not provide a sufficient remedy as required by Miller
and Montgomery. (Doc. 13.) Davis’ amended petition conforms his claim under Miller and
Montgomery to raise the new contention that S.B. 590 is unconstitutional and insufficient under
Miller and Montgomery. As for Davis’ claim under Graham, the parties appear to agree that the
claim is not moot, as it is unaffected by S.B. 590, and that the claim is exhausted. Having given
Davis leave to amend his petition, the Court concludes that Davis’ petition is not moot. As is
discussed in Part II.C. of this Order, the Court will stay this case to allow Davis to fully exhaust
his claim under Miller and Montgomery in state court.
Davis’ Motion to Stay
Finally, the Court takes up Davis’ motion to stay. (Doc. 14.) Respondents oppose this
motion. (Doc. 21.) Under 28 U.S.C. § 2254(b) and (c), a federal district court must dismiss a
petition for writ of habeas corpus if it contains claims that have not been exhausted in the state
courts. See Rose v. Lundy, 455 U.S. 509, 511 (1982) (imposing a total exhaustion requirement
where federal petitions contain both exhausted and unexhausted claims).
doctrine, codified in 28 U.S.C. § 2254, allows the state courts an initial opportunity to review
claims of constitutional error before the claims are reviewed by federal courts. Id. at 518. The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) altered the landscape of
federal habeas proceedings by maintaining the exhaustion requirement and also imposing a oneyear statute of limitations on the filing of federal habeas petitions. 28 U.S.C. § 2244(d)(1);
Rhines v. Weber, 544 U.S. 269, 274 (2005). The filing of a petition for habeas corpus in federal
court does not toll the statute of limitations for an unexhausted claim contained in that petition.
Id. at 274-75 (citations omitted). As a result of the interplay between the AEDPA’s one-year
statute of limitations and Lundy’s total exhaustion requirement, petitioners with “mixed”
petitions—that is, petitions containing both exhausted and unexhausted claims—run the risk of
forever losing their opportunity for federal review of their unexhausted claims. Id. at 275.
The United States Supreme Court in Rhines expounded on the problem as follows:
If a petitioner files a timely but mixed petition in federal district court, and the
district court dismisses it under Lundy after the limitations period has expired, this
will likely mean the termination of any federal review. For example, if the
District Court in this case had dismissed the petition because it contained
unexhausted claims, AEDPA’s 1-year statute of limitations would have barred
Rhines from returning to federal court after exhausting the previously
unexhausted claims in state court. Similarly, if a district court dismisses a mixed
petition close to the end of the 1-year period, the petitioner’s chances of
exhausting his claims in state court and refiling his petition in federal court before
the limitations period runs are slim. The problem is not limited to petitioners who
file close to the AEDPA deadline. Even a petitioner who files early will have no
way of controlling when the district court will resolve the question of exhaustion.
Thus, whether a petitioner ever receives federal review of his claims may turn on
which district court happens to hear his case.
Id. As a solution, the United States Supreme Court determined that it is permissible for a district
court to issue a stay of a “mixed” petition, but only in limited circumstances. Id. at 277.
“Because granting a stay effectively excuses a petitioner’s failure to present his claims first to the
state courts, stay and abeyance is only appropriate when the district court determines there was
good cause for the petitioner’s failure to exhaust his claims first in state court.” Id. On the one
hand, a district court should issue a stay “if the petitioner had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278. On the other hand, a
stay is not warranted, for example, “if a petitioner engages in abusive litigation tactics or
intentional delay[.]” Id.
Here, Davis’ petition is a “mixed” petition containing both exhausted and unexhausted
claims. Davis’ claim under Graham is exhausted by virtue of the Missouri Supreme Court’s
denial of his first state court petition for writ of habeas corpus on July 19, 2016. However, the
enactment of S.B. 590 broadens Davis’ claim under Miller and Montgomery, as set forth in his
amended petition; this claim is not yet exhausted. This claim is currently pending before the
Missouri Supreme Court in Davis’ second state habeas proceeding. Respondents oppose Davis’
motion to stay, arguing that (1) a stay is not appropriate because Davis’ unexhausted claim under
Miller and Montgomery is without merit, and (2) Davis’ second habeas action is not the
appropriate method to exhaust this claim in state court.3
This Court is not persuaded by
Key to the principles set forth in Rhines, the Court finds that Davis has demonstrated
good cause because Davis’ claim under Miller and Montgomery has broadened since the
enactment of S.B. 590, which occurred during the pendency of this action. The Court does not
find that Petitioner’s claim is plainly meritless or that Davis has engaged in any dilatory
litigation tactics. Therefore, a stay of the instant federal proceedings is the appropriate course,
which will allow the state court to first review Davis’ claim under Miller and Montgomery as set
forth in the amended petition. A stay is warranted until Davis has completed the exhaustion
process in state court. Should the Missouri Supreme Court dismiss Davis’ second habeas action
with directions that a petition be filed with a lower court, the stay is conditioned upon Davis’
prompt filing of a petition with the appropriate court. See Rhines, 544 U.S. at 278 (“[D]istrict
courts should place reasonable time limits on a petitioner’s trip to state court and back.”).
On this later point, Respondents state that to challenge a Missouri statute, Davis should either
have brought a declaratory judgment action, or if a habeas action is appropriate, Davis should have first
filed such action with the state trial court.
For the reasons above, the Court orders as follows:
Petitioner Michael L. Davis’ Motion for Leave to File Amended Petition for Writ
of Habeas Corpus (doc. 15) is GRANTED. Petitioner is directed to electronically file his
amended petition (doc. 15-1) on or before January 31, 2017.
Petitioner Michael L. Davis’ Motion to Stay Proceedings (doc. 14) is
All proceedings in this case are STAYED and this case is further
ADMINISTRATIVELY CLOSED to allow Davis to fully exhaust his claim under Miller and
Montgomery in state court.
Petitioner shall promptly notify the Court when the Missouri
Supreme Court issues any decision related to his pending state habeas proceeding in Case No.
SC96014. Should the Missouri Supreme Court dismiss Petitioner’s state habeas proceeding with
directions to file the action in a lower court, the stay is conditioned upon Petitioner filing his
petition with the appropriate court within thirty (30) days of that order.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: January 26, 2017
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