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Suber v. Hurley

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

June 5, 2017

CARLOS SUBER, Petitioner,
v.
JAMES HURLEY, Respondent.

          MEMORANDUM AND ORDER.

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE.

         Petitioner 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 summarily dismissed.

         On January 14, 2010, petitioner pled guilty to three charges of felony assault in the first degree. See State v. Suber, No. 09SL-CR04157-01 (21st Judicial Circuit, St. Louis County). The trial court sentenced petitioner to an aggregate prison term of ten (10) years. The court suspended the execution of the sentence (“SES”) and placed petitioner on parole. Petitioner did not appeal the original sentence or file a timely motion for post-conviction relief.

         The court revoked petitioner's parole on June 11, 2015 and sentenced petitioner to five (5) years' imprisonment on August 31, 2015. Id.

         Petitioner filed a motion for post-conviction relief relating to his parole violation, pursuant to Missouri Supreme Court Rule 24.035 on July 2, 2015, which was denied without a hearing on May 23, 2016. See Suber v. State, No. 15SL-CC02426 (21st Judicial Circuit, St. Louis County). Petitioner appealed on June 7, 2016, and the Missouri Court of Appeals affirmed the lower court on March 21, 2017. See Suber v. State, No. ED 104555 (Mo.Ct.App.). Petitioner is currently incarcerated at Northeast Correctional Center, where James Hurley is the Warden.

         In the instant petition, petitioner argues: (1) the State violated his due process rights by failing to examine whether he had the ability to pay restitution; (2) his trial counsel was ineffective for failing to include the matter of failure to pay restitution in his guilty plea as grounds for revocation; (3) his appellate counsel was ineffective for failing to include his grounds for relief in his post-conviction appeal of his revocation; (4) the State failed to follow due process in the revocation proceedings, such as allowing petitioner to call witnesses, allowing petitioner to cross-examine witnesses or providing petitioner with notice of intent to revoke; and (5) “the plea court lacked the authority to hold a probation revocation proceeding and to revoke probation after the expiration of [his] probationary period.” It is somewhat unclear which of these claims relate to petitioner's original conviction on January 14, 2010, and if some of these claims relate only to petitioner's revocation, which occurred on June 11, 2015. To the extent that the claims relate only to petitioner's original conviction, the claims appear to be time-barred.[1]

         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.

         Under 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. E.g., 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 days after the judgment was entered. Mo. Sup. Ct. R. ...


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