United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER.
C. HAMILTON 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
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.
court revoked petitioner's parole on June 11, 2015 and
sentenced petitioner to five (5) years' imprisonment on
August 31, 2015. Id.
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.
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
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-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. 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. ...