United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
seeks a writ of habeas corpus under 28 U.S.C. § 2254.
Because the petition appears to be untimely, the Court will
order petitioner to show cause why the petition should not be
September 30, 2008, petitioner pled guilty to felony
theft/stealing over $500 in property. See State v.
Mullins, No. 08BB-CR00984-01 (12th Judicial
Circuit, Warren County Court). On that same date he was
sentenced to an aggregate prison term of ten years in the
Missouri Department of Corrections. The court suspended the
execution of the sentence (“SES”), and retained
jurisdiction over petitioner for 120 days, pursuant to
Mo.Rev.Stat. § 559.115 under the Missouri Shock
Incarceration Program. On December 16, 2008, the court
ordered that petitioner be released on probation for a period
of five years. Petitioner did not appeal the sentence or file
a timely motion for post-conviction relief.
court revoked petitioner's probation on September 9,
2010. Id. Petitioner waited until April 19, 2017 to
file a motion for post-conviction relief under Missouri Rule
24.035, which was denied on that same date without a hearing.
See Mullins v. State, No. 17BB-CC00036
(12thJudicial Circuit, Warren County Court).
Petitioner is currently incarcerated at Eastern Reception
Diagnostic and Correctional Center, where Troy Steele is
instant petition, petitioner argues that his counsel was
ineffective and that his sentence is invalid under the
Missouri Supreme Court case of State v. Bazell, 497
S.W.3d 263 (Mo.banc 2016).
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.
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.
Missouri law a suspended execution of sentence
(“SES”) is an entry of judgment, because the
sentence has been assessed and only the act of executing the
sentence has been suspended. See State v. Nelson, 9
S.W.3d 687, 688 (Mo.Ct.App. 1999). The time for filing a
direct appeal of the judgment expired ten (10) days after the
judgment was entered. Mo. Sup. Ct. R. 30.01(d). As a result,
petitioner's judgment on his original conviction became
final ten (10) days after he was sentenced on September 30,
2008. Petitioner's judgment on his revocation became
final ten (10) days after he was revoked on September 9,
petitioner did not file an appeal or motion for
post-conviction relief within the one-year period for either
his original sentence or his revocation, but instead waited
until almost seven years after his revocation, it matters not
whether he is attempting to overturn his original conviction
or his ...