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Decker v. Bowersox

United States District Court, E.D. Missouri, Eastern Division

July 15, 2014

JIMMY L. DECKER, Petitioner,
v.
MICHAEL BOWERSOX, Respondent.

MEMORANDUM

DAVID D. NOCE, Magistrate Judge.

This action is before the court upon the petition of Missouri state prisoner Jimmy L. Decker for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the petition for a writ of habeas corpus is denied.

I. BACKGROUND

On May 16, 2008, a jury in the Circuit Court of Scott County found petitioner guilty of one count of first degree statutory rape (Count I), three counts of first degree statutory sodomy (Counts II, III, IV), and one count of incest (Count V). (Doc 10, Ex. A at 550.) On July 10, 2008, the circuit court sentenced petitioner to twenty-five years imprisonment on Count I, twenty-five years imprisonment each on Counts II, III, and IV, and four years imprisonment on Count V. (Id., Ex. C at 130.) The circuit court further ordered the sentences for Counts I, II, and III to run consecutively with Counts IV and V to run concurrently with Count I. (Id.) The total sentence amounted to seventy-five years. (Id.) On October 15, 2009, the Missouri Court of Appeals affirmed the judgment on direct appeal. (Id., Ex. F.)

On December 30, 2009, petitioner filed in the circuit court a pro se motion for post-conviction relief under Missouri Supreme Court Rule 29.15. (Id., Ex. G at 3-8.) On March 29, 2010, with the assistance of appointed counsel, petitioner filed an amended motion for post-conviction relief. (Id. at 11-26.) The circuit court denied petitioner's motion on November 3, 2010. (Id. at 27-28.) On August 2, 2011, the Missouri Court of Appeals affirmed the circuit court's denial of the motion. (Id., Ex. K.) On August 10, 2012, petitioner filed the instant petition for a writ of habeas corpus.

The Missouri Court of Appeals described relevant facts of the case thus:

We review the evidence in the light most favorable to the verdict. In that light, the evidence was that [petitioner, her father, ] committed various acts of sexual misconduct with B.D., which occurred at [petitioner's] mother's home in Sikeston, Missouri, from February through August of 2005. At the time of trial, B.D. testified that she was nine years old and in the third grade. B.D. stated that when she was living with her grandma in Sikeston, Missouri, [petitioner] "touched [her] in [her] private parts" with "[h]is private part." B.D. also testified that [petitioner] touched her "private part" with his hands and that she touched his "private part" with her hands. These acts occurred "more" than ten times, but B.D. did not immediately report [petitioner] because he told her that "if [she] told anybody he was going to whoop [her] with a belt." Other facts relevant to the appeal will be discussed as necessary to review the point relied on.

(Id., Ex. F, at 2 (Memorandum).)

II. PETITIONER'S GROUNDS FOR FEDERAL HABEAS RELIEF

Petitioner alleges three grounds for relief in this habeas action:

(1) The trial court erred in admitting testimony regarding prior, uncharged sexual acts committed by petitioner.
(2) The petitioner received ineffective assistance of trial counsel due to counsel's failure to investigate and use a potential alibi witness.
(3) The petitioner received ineffective assistance of appellate counsel due to counsel's failure to raise on direct appeal the trial court's denial of petitioner's motions to declare a mistrial and quash the jury panel.

(Doc. 1 at 5-9.)

Respondent contends that the petition was filed outside the federal limitations period, that Ground 2 is procedurally barred, and that Grounds 1-3 are without merit.

III. STATUTE OF LIMITATIONS

On respondent's argument that petitioner's claims are barred by the one-year statute of limitations, in pertinent part 28 U.S.C. § 2244(d) states:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking review;
* * *
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

If a petitioner does not seek review in the highest reviewing state court, a judgment becomes final for purposes of Section 2244(d)(1)(A) and the statute of limitations begins to run on the date that the time for seeking such review expires. Gonzalez v. Thaler , 132 S.Ct. 641, 646 (2012). Section 2244(d)(2) tolls the time during which a properly filed post-conviction relief motion is pending. 28 U.S.C. § 2244(d)(2). An application for post-conviction review in Missouri is pending for tolling purposes under § 2244(d)(2) until the appellate ruling is considered final by the issuance of the mandate of the appellate court. Meierer v. Meierer , 876 S.W.2d 36, 37 (Mo.Ct.App. 1994)(ruling appellate ruling is not final until the court issues its mandate); Payne v. Kemna , 441 F.3d 570, 572 (8th Cir. 2006).

Petitioner's federal habeas petition was filed in this court after the one-year limitations period expired. The Missouri Court of Appeals issued the mandate on the direct appeal from the conviction and sentence on October 15, 2009, triggering the one-year time limitation. (Doc. 10, Ex. F.) Seventy-six days later on December 30, 2009, petitioner timely filed his Rule 29.15 motion. (Id., Ex. G at 3-8.) The Missouri Court of Appeals affirmed the circuit court's denial of post-conviction relief in an opinion dated August 2, 2011, and issued its mandate on August 18, 2011. (Id. Ex. K.) Therefore, the judgment denying the Rule 29.15 motion became final on August 18, 2011, and the one-year period continued to run. The one-year period ran out two-hundred and eighty-nine days later on June 2, 2012. Petitioner filed the instant petition on August 10, 2012. (Doc. 1.)

Therefore, this action is barred because petitioner filed his petition for federal habeas relief after the passage of the ...


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