United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON, UNITED STATES DISTRIC JUDGE
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.
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probation was revoked, and his original sentence of 7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. 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.
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.
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.
28 U.S.C. § 2244(d):
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.
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.
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.
IT IS HEREBY ORDERED that petitioner's
motion to proceed in forma ...