United States District Court, E.D. Missouri, Eastern Division
KEVIN D. MCGEE, Petitioner,
DAVID SCHMITT,  Respondent.
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court upon the motion of Kevin McGee for
leave to commence this action without payment of the required
filing fee, see 28 U.S.C. § 1915(a), and
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Upon consideration of the financial information
provided with the application, the Court finds that the
applicant is financially unable to pay any portion of the
filing fee. Therefore, the Court will grant petitioner leave
to proceed in forma pauperis pursuant to 28 U.S.C. §
who is confined at the Southeast Missouri Mental Health
Center in Farmington, Missouri, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner states that in
1988 he was convicted of third-degree misdemeanor assault and
flourishing a deadly weapon after pleading not guilty by
reason of insanity in the Circuit Court of Cape Girardeau
County, Missouri. He states that he was sentenced on June 8,
1988 and that he did not appeal the judgment. As grounds for
relief, petitioner claims that his attorney coerced him into
entering the plea by falsely representing that petitioner
would only spend six months in a state hospital.
U.S.C. § 2243 and Rule 4 of the Rules Governing §
2254 Cases in the United States District Courts provide that
a district court may summarily dismiss a petition for writ of
habeas corpus if it plainly appears that the petitioner is
not entitled to relief. A review of the instant petition
indicates that it is time barred under 28 U.S.C. §
2244(d)(1), and is subject to summary dismissal.
Antiterrorism and Effective Death Penalty Act (AEDPA)
establishes a one-year period of limitation for habeas corpus
petitions that begins to run, as relevant here, from
''the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.'' 28 U.S.C ' 2241(d)(1)(A).
Petitioner was sentenced on June 8, 1988 and did not appeal
the judgment. Therefore, under § 2244(d)(1)(A) the
one-year limitation period began to run-at the latest- thirty
days from June 8, 1988. Cf. Smith v.
Bowersox, 159 F.3d 345 (8th Cir. 1998); Mo. Sup. Ct. R.
30.01(d). Because the judgment petitioner wishes to attack
became final before the enactment of the AEDPA on April 24,
1996, he is entitled to a one year grace period which ended
on April 24, 1997. See Ford v. Bowersox, 178 F.3d
522, 523 (8th Cir. 1999). The instant petition was filed more
than nineteen years after expiration of the grace period.
Therefore, it is untimely.
extent that petitioner is seeking conditional or
unconditional release, his habeas petition is subject to
dismissal for failure to exhaust available state remedies.
Missouri Revised Statutes § 552.040, a committed person
can only petition under § 2554 for either conditional or
unconditional release. Petitioner states that he has sought
both remedies at one time. However, he has not indicated
which remedy was most recently sought and denied. Therefore,
in an abundance of caution, the Court will address both
avenues for relief in Missouri.
release is for a limited duration and is qualified by
reasonable conditions. See § 552.040.10(3). To
obtain conditional release a petitioner must prove, by clear
and convincing evidence, that he ''is not likely to
be dangerous to others while on conditional
release.'' § 552.040.12(6). A conditional
release implies that despite a mental disease or disorder,
the committed person is eligible for limited freedom from a
mental health facility, subject to certain conditions.
Greeno v. State, 59 S.W.3d 500, 504 (Mo. banc 2001).
release, by contrast, can be granted only if the petitioner
shows ''by clear and convincing evidence that he does
not have, and in the reasonable future is not likely to have,
a mental disease or defect rendering him dangerous to the
safety of himself or others.'' ' 552.040.7. Thus,
Missouri places the burden on the insanity acquittee to prove
that he qualifies for conditional or unconditional release by
clear and convincing evidence. Grass v. Reitz, 643 F.3d
579, 581 (8th Cir.2011); Mo.Rev.Stat. §§
552.040.7(6) & 552.040.12(6); State v.
Rottinghaus, 310 S.W.3d 319, 324 (Mo.Ct.App.2010).
and convincing evidence is ''evidence that instantly
tilts the scales in the affirmative when weighed against the
evidence in opposition so that the court is left with the
abiding conviction that the evidence is true.''
Greeno, 59 S.W.3d at 505 (internal citations
omitted). When an individual is acquitted by reason of mental
disease or defect for a dangerous felony, in order to grant
conditional or unconditional release, the court also must
find that the individual ''is not now and is not
likely in the reasonable future to commit another violent
crime'' and ''is aware of the nature of the
violent crime committed ... and presently possesses the
capacity to appreciate the criminality of the violent crime
... and ... to conform [his or her] conduct to the
requirements of law in the future.'' Mo.Rev.Stat.
§ 552.040.20. The denial of a petition for either
conditional or unconditional release is ''without
prejudice to the filing of another application after the
expiration of one year.'' § 552.040.13, 8.
28 U.S.C. § 2254(b)(1)(A) prohibits habeas relief on
behalf of a person in state custody unless that person has
''exhausted the remedies available in the courts of
the State.'' ''The exhaustion requirement of
§ 2254(b) ensures that the state courts have the
opportunity fully to consider federal-law challenges to a
state custodial judgment before the lower federal courts may
entertain a collateral attack upon that judgment.''
Duncan v. Walker, 533 U.S. 167, 178B79 (2001). The
requirement prevents a federal court from granting a habeas
petition based on a constitutional violation that could be
redressed adequately by pursuing an avenue of state relief
''still open to the habeas applicant at the time he
files his application in federal court.''
Humphrey v. Cady, 405 U.S. 504, 516 (1972).
most of the cases defining the contours of the exhaustion
requirement arise from challenges to state custody following
criminal conviction, the Supreme Court's holding that
exhaustion requires only a fair presentation that is
satisfied ''by invoking one complete round of the
State's established appellate review process, ''
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999), applies with equal force when a habeas petitioner
seeks to challenge state custody pursuant to a civil
commitment, see Beaulieu v. Minnesota, 583 F.3d 570,
575 (8th Cir.2009). ''To satisfy the exhaustion
requirement, a person confined in the Missouri State Hospital
must apply for release under section 552.040 before filing a
petition for a writ of habeas corpus. Additionally, ...