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Finger v. Schweitzer

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

May 4, 2015

KEVIN FINGER, Petitioner,
v.
M. JANE SCHWEITZER, Respondent.

OPINION, MEMORANDUM AND ORDER

HENRY EDWARD AUTREY, District Judge.

This matter is before the Court on Petitioner's Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254 [Doc. No. 1]. Respondent has filed her Response to the Court's Order to Show Cause [Doc. No. 11]. Petitioner has filed a reply. [Doc. No. 13]. Upon review of this matter, the Court concludes that the Petition is untimely, pursuant to 28 U.S.C. § 2244(d), and fails to state an actionable claim for relief. The Petition will, therefore, be denied and dismissed.

Background

On December 8, 2009, Petitioner was found by a jury to be a sexually violent predator, and the trial court entered a judgment and order of commitment. [Respondent Exhibit A]. Petitioner's motion for judgment notwithstanding the verdict, or for a new trial, was denied on February 1, 2010. [Respondent Exhibit B].

Petitioner claims that, following the trial court's denial of his motion, his trial counsel sent a notice of appeal to the trial court by fax on February 25, 2010. Petitioner has provided the receipt confirmation for the fax on that date. However, the trial court never docketed the notice of appeal, likely because local Missouri court rules afford local courts the discretion to decide whether to accept filings submitted via fax, Missouri Rule of Court, Rule 43.02(c), and no such local rule exists in the Circuit Court for the City of St. Louis.

In September 2011, Petitioner sent an inquiry to the public defender's office regarding the status of his appeal. Petitioner eventually filed a petition for writ for mandamus in the Missouri Court of Appeals on June 5, 2012, requesting the Missouri Court of Appeals enter a writ of mandamus directing the trial court to file Petitioner's notice of appeal and deem it timely filed. [Respondent Exhibit D]. The Missouri Court of Appeals summarily denied the petition without comment on July 5, 2012. [Respondent Exhibit F]. On July 18, 2012, Petitioner filed a petition for writ of mandamus requesting the same relief in the Supreme Court of Missouri. That petition was also summarily denied without comment on August 14, 2012. [Respondent Exhibits G, H].

Petitioner filed the instant Petition for Writ of Habeas Corpus on December 11, 2012, in which he appears to request the same relief he sought in his state court petitions for writ of mandamus-for this Court to order the St. Louis Circuit Court for the City of St. Louis to file Petitioner's notice of appeal and deem it timely filed.

Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA") applies to all petitions for habeas relief filed by state prisoners after the statute's effective date of April 24, 1996. When reviewing a claim that has been decided on the merits by a state court, AEDPA limits the scope of judicial review in a habeas proceeding as follows:

An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).

In construing AEDPA, the United States Supreme Court, in Williams v. ...

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