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Bowman v. Russell

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

February 18, 2015

ADRIAN D. BOWMAN, a/k/a CALVIN BRISON, Petitioner,
v.
TERRY RUSSELL, Respondent.

MEMORANDUM AND ORDER

JEAN C. HAMILTON, District Judge.

This matter is before the Court on Petitioner Adrian Bowman's Petition Under § 2254 for Writ of Habeas Corpus by a Person in State Custody, which Bowman filed on May 23, 2012. (Petition, ECF No. 1). The Petition has been fully briefed and is ready for disposition.

BACKGROUND

On June 4, 2003, Bowman was convicted by a jury in the City of St. Louis, Missouri of four counts: (I) Murder in the First Degree; (II) Armed Criminal Action ("ACA"); (III) Assault in the First Degree; and (IV) a second count of ACA. (Petition at 2). Bowman was sentenced to life without parole on the First-Degree Murder count. Id. He also received sentences of 30-years imprisonment on each of the remaining three counts. Id.

Bowman first challenged his conviction by direct appeal in state court. Bowman raised two points in his direct appeal: (1) that "the trial court erred in overruling his motion for continuance of his sentencing hearing for the purpose of securing the presence of one of the State's witnesses who would allegedly recant his trial testimony, or in the alternative, denying his motion for new trial" based on the prospect of that recantation; and (2) that "the trial court erred in denying his request for a mistrial or in the alternative, denying his request to replace Juror Number 73, because of alleged exposure to a newspaper article relating to Bowman and his trial." (Direct Appeal Order, Resp. Exh. 5, at 2, 4). The Missouri Court of Appeals affirmed Bowman's conviction. Id. at 5. The Missouri Supreme Court then denied Bowman's motion for transfer. (Petition at 2).

Bowman also filed a motion for post-conviction relief in state court pursuant to Missouri Supreme Court Rule 29.15. (Petition at 4). In his 29.15 Motion, Bowman sought relief on the basis that his trial counsel was ineffective for: "(1) failing to call several alibi witnesses, (2) not objecting to a statement the prosecutor made during closing argument, and (3) not offering an involuntary manslaughter instruction." (29.15 Appellate Order, Resp. Exh. 11, at 3). The 29.15 motion court denied Bowman's motion after an evidentiary hearing. (Petition at 4). The Missouri Court of Appeals affirmed that denial. Id. at 4-5.

In this Petition, Bowman raises four grounds for relief: (1) that he was denied due process when the trial court did not allow Bowman "to present evidence of the State's main witness [ sic ], Dwayne Dixon, recantation of his trial testimony in a hearing on [Bowman's] Motion for New Trial[;]" (2) that he was denied due process because the trial court did not replace Juror 73 or declare mistrial after learning that the juror "brought a copy of the St. Louis Post-Dispatch into the jury room, prior to the beginning of evidence on June 4, 2003, which paper contained an article discussing the ongoing murder trial of [Bowman] as well as discussing the fact that he had been acquitted of another homicide three months prior[;]" (3) that his trial counsel was ineffective because "he failed to interview, properly investigate, subpoena and call material witnesses, Lawanda Shears, Debora Williams, Jola Howard, and Juwan Clark whose testimony was necessary to provide [Bowman] a viable defense[;]" and (4) that his trial counsel was ineffective for failing "to object to the State's characterization, in closing arguments, of [Bowman] as the predator of the type that makes this city unlivable, the people that go out there with guns and kill people'...." (Support Memo, ECF No. 1-1, at 1, 4, 8, 10).

DISCUSSION

I. Timeliness

In addition to challenging each of Bowman's claims on the merits, the State contends that Bowman's Petition should be denied because it is untimely. Under 28 U.S.C. § 2244(d)(1), a one-year statute of limitations applies to the habeas petitions of state prisoners, and it begins to run at the time the state court judgment "became final." Id. This limitations period is tolled under 28 U.S.C. § 2244(d)(2) for "[t]he time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending...." Id. At issue here is the scope of the term "pending" as used in § 2244(d)(2).

According to the State:

The Missouri Supreme Court denied transfer of the case on direct appeal on April 27, 2005. The time for filing a certiorari petition expired ninety days later on approximately July 27, 2005. This completed direct review of the case for purposes of starting the one-year statute of limitations under 28 U.S.C. §2244(d)(1). But the statute of limitations was already statutorily tolled starting on March 5, 2005 under 28 U.S.C. § 2244(d)(2), which tolls the statute of limitations while a properly filed state collateral review motion "is pending". Bowman filed a pro se Rule 29.15 motion on March 5, 2005.
The appeal of the denial of the post-conviction relief motion was decided on May 17, 2011.... Bowman through counsel filed a petition under 28 U.S.C. §2254 on May 23, 2012. Because the petition was filed by counsel the prison mail box rule' is not applicable.
...
In this case Bowman appears to have let the one year statute of limitations run out after his state post-conviction review case ceased to be pending on May 17, 2011, ending statutory tolling.

(State Response, ECF No. 6, at 3-6 (internal citations omitted)).

In his Reply, Bowman explains the tolling period as follows:

Bowman filed for post-conviction relief on March 23, 2005, which was before the Missouri Supreme Court denied his Application for Transfer on April 26, 2005. Bowman's post-conviction motion was not decided by the trial court until May 23, 2010. Bowman appealed that decision to the Court of Appeals which did not enter its opinion until May 17, 2011. Thereafter, Bowman had 15 days to file his motion for rehearing. As such, Bowman's statute of limitations was tolled from March 23, 2005 until June 1, 2011. Therefore, Bowman's statute of limitations began on June 2, 2011 and he had until June 1, 2012 to file his federal petition for habeas corpus.

(Bowman Reply, ECF No. 8, at 2-3 (emphasis in original)). Thus, the State contends that Bowman's state post-conviction motion ceased to be pending, ending the tolling of the limitations period, on the date the Court of Appeals affirmed the decision of the motion court. Bowman, on the other hand, asserts that his state ...


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