United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, DISTRICT JUDGE
matter is before the Court on Petitioner John Daniel Hawkins,
Jr.'s Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 (Doc. 1). The Government responded (Doc.
11). Petitioner filed a reply (Doc. 12), and at the
Court's direction, the Government filed a sur-reply
(Docs. 13, 22). For the following reasons, Petitioner's
Section 2254 petition is DENIED, and this action is DISMISSED
Introduction and Background
2, 2008, Petitioner entered pleas, pursuant to North
Carolina v. Alford, 400 U.S. 25 (1970), in the Circuit
Court of Saint Louis City, Missouri, to one count each of
second-degree burglary and felony stealing (Doc. 11.1 at
31-64). On August 22, 2008, the trial court
sentenced Petitioner as a prior and persistent offender to
two concurrent twelve (12) years terms of imprisonment, but
suspended execution of the sentence and placed him on
probation for five years (Id. at 66-82). On April
23, 2010, the trial court revoked Petitioner's probation
after he was convicted of another crime (id. at
84-99); and on April 30, 2010, the trial court executed his
previously suspended sentence (id. at 101-121).
9, 2010, Petitioner filed a motion for post-conviction relief
under Rule 24.035 (Id. at 126-130). An attorney was
appointed for Petitioner, and the attorney filed an amended
motion on January 7, 2011, asserting that there had been an
insufficient basis to support Petitioner's
Alford plea to felony stealing (Id. at
134-151). On May 31, 2011, the amended motion was denied by
the trial court without an evidentiary hearing (Id.
at 152-156). The Missouri Court of Appeals affirmed the
denial of Petitioner's motion (Doc. 11.4).
November 14, 2013, Petitioner filed the instant petition
under 28 U.S.C. § 2254 for a writ of habeas corpus,
advancing two grounds for relief: (1) that there was an
insufficient factual basis to support his Alford
plea to felony stealing; and (2) that trial counsel provided
him ineffective assistance by failing to present exculpatory
evidence at his plea hearing (Doc. 1). The Government has
responded, arguing that the petition is untimely and
addressing each ground on the merits (Doc. 11). Petitioner
has replied, and at the Court's direction, the Government
filed a sur-reply (Docs. 12-13, 22). The Court has reviewed
the parties' filings in their entireties, and having
determined that the petition is untimely, the Court will
limit its order to that issue.
failed to timely file his federal habeas petition. Section
2254 petitions are subject to a one-year limitation period
pursuant to 28 U.S.C. § 2244(d). As it relates to this
case, § 2244(d)(1)(A) provides that the one-year period
begins to run on "the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review." Under Missouri law, a
suspended execution of sentence is an entry of judgment, as
"a criminal conviction has been entered and the sentence
has been assessed; only the act of executing the sentence has
been suspended." State v. Nelson, 9 S.W.3d 687,
688 (Mo.Ct.App. 1999). In Missouri, a criminal judgment
becomes final "thirty days after its entry if no timely
authorized after-trial motion is filed.'" Mo. Sup.
Ct. R. 81.05; see also Dear v. Moore, No.
4:07-cv-1261-CEJ, 2009 WL 330656, at *4 (E.D. Mo. Feb. 6,
2009). A notice of appeal must be filed within ten days of a
final judgment. Mo. Sup. Ct. R. 30.01(a), 81.04(a).
Petitioner did not appeal his Alford pleas or
sentence, nor did he file any timely post-trial motions.
Thus, his judgment of conviction became final on September 1,
2008, or ten days after he was sentenced. Because Petitioner
did not appeal his conviction or sentence before September
11, 2008 (ten days after final judgment), the one-year
limitation period for Petitioner to file his petition for a
writ of habeas corpus under 28 U.S.C. § 2254, began on
September 11, 2008, and elapsed one year later on September
11, 2009. See 28 U.S.C. § 2244; see also Hawkins v.
Schneider. 4:13-cv-0313-JMB, 2016 WL 915190, at *6 (E.D.
Mo. Mar. 10, 2016); Watkins-Isravl v. Ives.
4:13-cv-100 JCH, 2013 WL 2475621, at *2 (E.D. Mo.
June 10, 2013); Garrett v. Dormire, No.
4:10-cv-1861-CDP, 2011 WL 4445839, at *4 (E.D. Mo. Sept. 26,
2011). Petitioner did not file the instant petition until
November 14, 2013; and it is thus untimely. Painter v.
Iowa, 247 F.3d 1255, 1255 (8th Cir. 2001) (the time
between the date that direct review of a conviction is
completed and the date that an application for state
post-conviction relief is filed counts against the one-year
limitations period set forth in § 2244).
argues that he is entitled to equitable tolling of the
one-year period-from the date of his initial sentencing
hearing until the date his sentence was executed-because his
sentence "did not become an issue" until it was
executed, and because the state court did not inform him of
the one-year deadline to filed his federal habeas petition.
The Court concludes that equitable tolling is unwarranted in
this case, as nothing in the record suggests that Petitioner
diligently pursued his rights and that some
"extraordinary circumstance" stood in his way.
Pace v. DiGulielmo, 544 U.S. 408, 418 (2005)
(generally, the litigant seeking equitable tolling bears the
burden of showing that he has been pursuing his rights
diligently, and that some extraordinary circumstance stood in
his way); Preston v. Iowa, 221 F.3d 1343, 2000 WL
995013, at * 1 (8th Cir. 2000) (unpublished per curiam
opinion) (refusing to apply equitable tolling in case of pro
se inmate alleging lack of legal knowledge or legal
resources). Petitioner does not claim that the state court
misled him as to the deadline for filing the instant
petition. Rather, he alleges only that the state court did
not advise him of the one-year federal limitations period, a
fact which is insufficient to show that "extraordinary
circumstances" prevented him from filing his petition in
a timely manner. Cf Baldwin Cnty. Welcome Ctr. v.
Brown, 466 U.S. 147, 151 (1984) (equitable tolling may
be appropriate where court has misled party regarding steps
he must take to preserve his claims). In short,
Petitioner's petition for writ of habeas corpus pursuant
to § 2254 is time-barred and must be dismissed.
IT IS HEREBY ORDERED that Petitioner John Daniel Hawkins,
Jr.'s Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 (Doc. 1) is DENIED, and this action is
DISMISSED with prejudice.
FURTHER ORDERED that, because Petitioner cannot make a
substantial showing of the denial of a constitutional right,
the Court will not issue a certificate of appealability.
See Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997), cert, denied, 525 U.S. 834 (1998).
separate judgment dismissing this ...