United States District Court, W.D. Missouri, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
GARY A. FENNER, District Judge.
Petitioner, a convicted state prisoner currently confined at the Potosi Correctional Center in Mineral Point, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2007 conviction and sentence for first degree assault, which was entered in the Circuit Court of Greene County, Missouri. Petitioner's direct appeal of his conviction and sentence was denied. Respondent's Exhibit I. Petitioner filed a motion for post-conviction relief pursuant to Mo. Sup.Ct. R. 29.15, the denial of which was affirmed on appeal. Messier v. State, 398 S.W.3d 508 (Mo. App. 2013). As a preliminary matter, respondent contends that, although petitioner states in his petition that he raises four grounds, he actually raised only three grounds for relief.
Statute of Limitations
Respondent first contends that petitioner=s petition should be dismissed as untimely because (1) direct review of petitioner's state conviction concluded on October 31, 2008; (2) petitioner waited until January 12, 2009 to file a post-conviction motion, which was concluded on February 22, 2013; and (3) petitioner mailed his federal petition on March 25, 2014, almost three (3) months after the one-year deadline for filing under 28 U.S.C. §2244(d)(1). Doc. No. 12, pp. 8-9. Respondent also argues that petitioner offers no medical records to support his claims that his medical condition justifies his untimely petition and has asserted no facts that he has been pursuing his rights diligently. Doc. No. 12, pp. 9-10. In the alternative, respondent argues that petitioner's claims are without merit. Doc. No. 12, pp.10-23.
In reply, petitioner argues that his petition is within the one-year statute of limitations for federal habeas because he did not have access to his legal papers or his medical records and that he has seizures which make it hard for him to stand or sit for long periods of time. Doc. No. 16, p. 2. Because this case presents an example in which Ait is considerably easier and thus more judicially efficient to affirm on the merits than to untangle the complexities of the timeliness issue, " this Court will address the merits of petitioner's grounds for relief. Jones v. Bowersox, 28 Fed.Appx. 610, 611, 2002 WL 215523, **1 (8th Cir. Feb. 13, 2002).
In ruling on petitioner's motion for post-conviction relief, the Missouri Court of Appeals, Southern District, set forth the following facts:
On the evening of April 10, 2006, Springfield Police Officer Chelsea Inlow responded to a Springfield motel to find Robert Nishimoto ("Victim") on a nearby sidewalk. The officer observed that Victim "was bloody. There was blood coming from his mouth, [and] blood coming from the back of his head." There was also a pool of blood beside Victim.
Crystal Page testified that she had been with [petitioner], Jennifer Cass, and a couple of other people at a Springfield motel on April 10, 2006. Eventually she left with [petitioner] to "get some alcohol out of the car, " and she saw Victim walking on the sidewalk. [Petitioner] said, "[H]old on a second[, ]" before running to his truck and retrieving a black glove. [Petitioner] then punched Victim "in the head[, ]" and Victim fell down on the sidewalk, hitting his head. [Petitioner] "ke[pt] on punching [Victim]" on the head and face "at least three or four" times. Page said "a bunch of people" ran out to see what was happening, and she realized at some point that [petitioner] had departed. When the police responded to the scene that night, Page falsely told them that she did not "know anything about what happened."
Cass recalled that [petitioner] and Page left the motel room "to go get the liquor [, ]" and after "awhile" she went to look for them. When she opened the door to go outside, "[petitioner] was standing at the door." [Petitioner] "said he had to beat this guy up." Cass looked around the door and saw "a guy laying [sic] on the ground." Cass began "cussing" at [petitioner] and told him to leave. Cass admitted that she was awaiting sentencing on an assault case of her own and hoped to receive a favorable sentence after giving her testimony in [petitioner's] case.
Springfield Police Detective Daron Wilkins interviewed [petitioner] on April 11, 2006. He advised [petitioner] of his Miranda FN3 rights and noticed that [petitioner] signed the rights-notice form with his left hand. Detective Wilkins noticed that [petitioner's] "left hand was swollen[, ]" and showed "some bruising[.]" He photographed [petitioner's] hand after the interview, and two of the photos were admitted into evidence. A video recording of the interview was made, and portions of it were played for the jury from State's Exhibit 14.FN4 The following day, Detective Wilkins recovered a pair of black gloves from Ms. Evans. The detective did not observe blood on the gloves, but he was not surprised based upon his experience with fighting.
FN3. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
FN4. The videotape has not been deposited with the Court, but both parties' briefs indicate that during the interview [petitioner] said he saw other men beating Victim, and he helped Victim stand up.
Dr. Steven Quinn, "an oral and maxillofacial surgeon, " treated Victim and discovered that he had suffered a fracture to the bone around the eye socket and "lots of fractures" to the maxillary bone. In lay terms, the maxillary bone was "smashed[.]" Dr. Quinn said the maxillary injury could have been caused by an object or a "forceful punch" to the cheekbone. He said that if a person was upright the face could "recoil." Victim's injuries would more easily have resulted from being punched while lying down on concrete, such as on a sidewalk. The doctor said that Victim may not have bled "instantaneously [.]" He performed surgery on Victim to reposition some bone, and he screwed a titanium plate across "the zygomatic arch" in Victim's skull to stabilize it for healing purposes. Without the surgery, Victim could have experienced "major interference with [his] ability to work [his] lower jaw." Additionally, unless the bones were correctly ...