United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
HENRY EDWARD AUTREY, District Judge.
This matter is before the Court on Petitioner's Amended Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254 [Doc. No. 100], Respondent has filed his Response to the Court's Order to Show Cause [Doc. No. 126]. Upon review of this matter, the Court concludes the Amended Petition is untimely, pursuant to 28 U.S.C. § 2244(d). The Amended Petition will, therefore, be denied and dismissed.
On April 19, 2005, the Missouri Court of Appeals affirmed Petitioner's conviction for first degree murder. On May 26, 2005, Petitioner filed a motion for post-conviction relief with the trial court, which was denied on October 12, 2006. The denial of Petition's motion was affirmed on appeal to the Missouri Court of Appeals on November 20, 2007, and the mandate issued on January 3, 2008.
Thereafter, Petitioner filed several petitions for writs of habeas corpus in Missouri state courts which were denied as follows: filed in state circuit court on April 17, 2008, denied on April 29, 2008; filed in state appellate court on May 19, 2008, denied on June 9, 2008; filed in the Missouri Supreme Court on August 5, 2008, denied on September 30, 2008.
Petitioner then filed a federal petition for writ of habeas corpus in this Court on December 11, 2008. (4:08CV1950HEA/MLM, Doc. No. 1). Petitioner supplemented his claims several times, and on February 17, 2009, a Report and Recommendation was issued finding that Petitioner had procedurally defaulted the issues he did not raise in his direct appeal or postconviction relief proceedings, and that the remainder of his petition should be dismissed because it was largely incomprehensible and because many of the stated grounds for relief should have been brought in separate actions under 42 U.S.C. § 1983. (4:08CV1950HEA/MLM, Doc. No. 20). Petitioner was granted leave to file an amended petition. Petitioner then twice sought, and obtained, leave to file amended petitions. Additionally, Petitioner filed various motions and submissions with the Court.
On July 22, 2009, the Magistrate Judge issued a Report and Recommendation, again finding that Petitioner procedurally defaulted all of the issues in his amended petition that he had not raised in his direct appeal or in his post-conviction relief proceedings. (4:08CV1950HEA/MLM, Doc. No. 47). Further, the Report and Recommendation thoroughly analyzed eight issues which were not procedurally defaulted and found them to lack merit. The Magistrate Judge recommended dismissing the amended petition. In response to the Report and Recommendation, Petitioner filed a motion requesting that the Court either hold his case in abeyance or dismiss it without prejudice so that he could pursue further state remedies. (4:08CV1950HEA/MLM, Doc. No. 49). The Court granted Petitioner's motion and dismissed the case without prejudice. (4:08CV1950HEA/MLM, Doc. No. 50).
Thereafter, Petitioner filed a second round of habeas petitions in Missouri state courts which were denied as follows: filed in state circuit court on September 1, 2009, denied on September 16, 2009; appealed on October 8, 2009, appeal dismissed on Petitioner's motion on December 4, 2009; filed in state circuit court on December 14, 2009, denied on April 21, 2011.
Petitioner returned to federal court by filing his initial Petition in the instant matter on June 4, 2010. The Magistrate Judge considered the Petition and issued a Report and Recommendation finding that the Petition was untimely, pursuant to 28 U.S.C. § 2244(d)(1), and recommended that it be dismissed. By Opinion, Memorandum, and Order entered on September 30, 2011, the Court dismissed the Petition as untimely. On October 3, 2011, Petitioner, through appointed counsel,  filed a motion for reconsideration, which requested that the Court vacate its dismissal of the matter and allow Petitioner to file an amended petition. The Court construed Petitioner's motion as a motion to alter or amend the judgment under Rule 59, granted the motion, vacated its Order dismissing the case, and allowed Petitioner leave to file an amended petition.
Presently before the Court is Petitioner's Amended Petition for Writ of Habeas Corpus.
Pursuant to 28 U.S.C. § 2244(d), Petitioner had one year from the date his judgment of conviction became final within which to file a petition for writ of habeas corpus in federal court. Where, as here, a Missouri petitioner does not seek transfer to the Missouri Supreme Court after direct appeal, his judgment becomes final upon expiration of the time within which to seek such discretionary review, that is, fifteen days after the court of appeals issues its opinion. Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641 (2012); Mo. S.Ct. R. 83.02. Thus, Petitioner's judgment of conviction became final on May 4, 2005, fifteen days after the Missouri Court of Appeals affirmed his conviction on direct appeal. The one-year limitations period was tolled, however, during the pendency of Petitioner's post-conviction proceedings, and during the pendency of his state habeas proceedings. 28 U.S.C. § 224(d)(2).
Accordingly, the statute of limitations ran 26 days from May 5, 2005 through May 26, 2005, the day Petitioner filed his motion for post-conviction relief. The statute began to run again on January 3, 2008, the date of the issuance of the mandate in Petitioner's post-conviction relief proceedings. See Payne v. Kemna, 441 F.3d 570, 572 (8th Cir. 2006). The statute then ran 105 days until Petitioner filed his first habeas petition in state circuit court; 20 days between the denial of his circuit court habeas petition and the filing of his state appellate court habeas petition; and 57 days between the denial of his appellate court habeas petition and the filing of ...