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White v. Griffith

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

May 26, 2017

DAVID GERMAINE WHITE, Petitioner,
v.
CINDY GRIFFITH, Respondent.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Having carefully reviewed the record, the Court will order petitioner to show cause as to why the it should not dismiss the instant petition as time-barred under 28 U.S.C. § 2244(d)(1).

         The Petition

         On March 23, 2012, after a bench trial, petitioner was found guilty of burglary in the first degree, unlawful use of a weapon, endangering the welfare of a child and property damage in the second degree. Petitioner was sentenced to twenty-five (25) years' imprisonment. See State v. White, No. 1122-CR00277-01 (22nd Judicial Circuit, City of St. Louis). Petitioner's conviction and sentence were affirmed on direct appeal on May 7, 2013. See White v. State, No.ED98194 (Mo.Ct.App.).

         Petitioner filed a motion for post-conviction relief on July 22, 2013. See Mullins v. State, No. 1322-CC08975 (22nd Judicial Circuit, City of St. Louis). The trial court denied his motion on December 31, 2014. Id. Petitioner filed a timely appeal of the denial, and the Missouri Court of Appeals affirmed the trial court's decision on October 27, 2015. See Mullins v. State, No. ED102604 (Mo.Ct.App.). The mandate was entered on November 18, 2015.

         Discussion

         Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts provides that a district court shall summarily dismiss a § 2254 petition if it plainly appears that the petitioner is not entitled to relief.

         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.

         The United States Supreme Court, in Gonzalez v. Thaler, 132 S.Ct. 641 (2012), held that a judgment becomes final under § 2244)(d)(1)(A) when the time for seeking review in the state's highest court expires. For Missouri prisoners, like petitioner, who do not file a motion to transfer to the Missouri Supreme Court, the limitations period begins to run fifteen (15) days after the Missouri Court of Appeals affirms a conviction on direct appeal. See Mo.S.Ct.R. 83.02; see also, Payne v. Kemna, 441 F.3d 570, 572 (8th Cir. 2006) (post-conviction relief ...


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