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Shepherd v. Steele

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

July 8, 2015

FREDERICK SHEPHERD, Petitioner,
v.
TROY STEELE, Respondent.

MEMORANDUM AND ORDER

JEAN C. HAMILTON, District Judge.

This matter is before the Court on petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition appears to be barred by § 2254's one-year limitations period, and the Court will order petitioner to show cause why the petition should not be dismissed.

Petitioner was convicted by a jury of second-degree assault and armed criminal action in 2011. On October 4, 2011, the Circuit Court for the County of St. Louis sentenced petitioner to consecutive sentences of fifteen years on the assault charge and three years on the charge of armed criminal action.

Petitioner filed a direct appeal of the sentence and conviction immediately after his sentencing. The conviction was affirmed on appeal on September 18, 2012, and petitioner's motion for rehearing or for transfer was denied on November 20, 2012. Petitioner did not file any post-conviction proceedings related to his conviction or sentence. Petitioner placed the instant petition for federal habeas relief, pursuant to § 2254, in the prison mail on June 29, 2015.

Under 28 U.S.C. § 2244(d):

(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 such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction 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.

The instant petition has been filed almost two years after petitioner's state court judgment of conviction became final. As a result, the Court will order petitioner to show cause why the petition should not be dismissed as time-barred. See Day v. McDonough, 126 S.Ct. 1675, 1684 (2006) (district court must give notice to petitioner before sua sponte dismissing petition as time-barred).

Accordingly,

IT IS HEREBY ORDERED that petitioner shall show cause, in writing and no later than thirty (30) days from the date of this Order, why this action should not be dismissed as time-barred.

IT IS FURTHER ORDERED that if petitioner fails to comply with this Order, this action will be dismissed.


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