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Mahone v. Prudden

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

February 23, 2017

MICHAEL MAHONE, Petitioner,
v.
DOUGLAS PRUDDEN, Respondent.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON, UNITED STATES DISTRIC JUDGE

         This matter is before the Court on the petition of Michael Mahone for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition appears to be barred by the limitations period, and the Court will order petitioner to show cause why it should not be summarily dismissed.

         After a hearing in front of the Honorable Carolyn Whittington in St. Louis County Court on October 4, 2012, petitioner's probation was revoked, and his original sentence of 7 years' imprisonment to the Missouri Department of Corrections was instated.[1] See Missouri v. Mahone, No. 08SL-CR01376-01 (21st Judicial Circuit, St. Louis County Court). On October 26, 2012, the state court sentenced him to seven years' imprisonment. He did not file an appeal of either his original conviction or his revocation of his probation. Petitioner also did not file a timely motion for post-conviction relief.

         On September 16, 2016, petitioner filed a motion for post-conviction relief under Rule 24.035 in the trial court. He argued that his prior convictions were unlawfully used to enhance his sentence under the new law announced by the Missouri Supreme Court in Missouri v. Bazell, 497 S.W.3d 263 (Mo. banc 2016), in which the court determined the proper application of Mo. Rev. Stat. § 570.030.3. The post-conviction motion is currently pending.[2]

         In the instant petition, petitioner asserts that his counsel was ineffective and that his sentence is invalid under Bazell. He maintains that the petition has been timely filed because the court's decision in Bazell restarted the limitations period.

         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.

         If no direct appeal is taken, a Missouri conviction becomes final ten days after the judgment is entered. Mo. R. Civ. P. § 81.04(a). Petitioner's sentence, therefore, became final on October 14, 2012. Because he did not file an appeal or a timely motion for post-conviction relief, the federal limitations period expired on October 14, 2013. As a result, the petition appears to be time-barred.

         Bazell did not restart the limitations period under § 2244(d)(1)(C) because only decisions of the United States Supreme Court may work to restart the limitations period under that provision. Moreover, Bazell concerns only state law, which is not a cognizable ground for relief under § 2254. Therefore, petitioner must show cause why the petition should not be dismissed as time-barred.

         Accordingly, IT IS HEREBY ORDERED that petitioner's motion to proceed in forma ...


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