United States District Court, E.D. Missouri, Eastern Division
KEVIN D. MCGEE, Petitioner,
DAVID SCHMITT,  Respondent.
MEMORANDUM AND ORDER
Ronnile L. White, Judge
matter is before the Court upon the motion of Kevin McGee for
leave to commence this action without payment of the required
filing fee, see 28 U.S.C. § 1915(a), and
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Upon consideration of the financial information
provided with the application, the Court finds that the
applicant is financially unable to pay any portion of the
filing fee. Therefore, the Court will grant petitioner leave
to proceed in forma pauperis pursuant to 28 U.S.C. §
the instant petition is time-barred, the Court will dismiss
it without requiring a response from David Schmitt. To the
extent petitioner is seeking conditional or unconditional
release, his petition will also be dismissed for his failure
to exhaust his available state remedies.
who is confined at the Southeast Missouri Mental Health
Center in Farmington, Missouri, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner states that in
1988 he was convicted of third-degree misdemeanor assault and
flourishing a deadly weapon after pleading not guilty by
reason of insanity ("NGRI") in the Circuit Court of
Cape Girardeau County, Missouri. He states that he was
sentenced on June 8, 1988 and that he did not appeal the
judgment. As grounds for relief, petitioner claims that his
attorney coerced him into entering the plea by falsely
representing that petitioner would only spend six months in a
U.S.C. § 2243 and Rule 4 of the Rules Governing §
2254 Cases in the United States District Courts provide that
a district court may summarily dismiss a petition for writ of
habeas corpus if it plainly appears that the petitioner is
not entitled to relief. A review of the instant petition
indicates that it is time barred under 28 U.S.C. §
2244(d)(1), and is subject to summary dismissal.
Antiterrorism and Effective Death Penalty Act
('AEDPA") establishes a one-year period of
limitation for habeas corpus petitions that begin to run, as
relevant here, from "the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review." 28
U.S.C. § 2241(d)(1)(A). Petitioner was sentenced on June
8, 1988 and did not appeal the judgment. Therefore, under
§ 2244(d)(1)(A), the one-year limitation period began to
run - at the latest - thirty days from June 8, 1988. Cf.
Smith v. Bowersox, 159 F.3d 345 (8th Cir. 1998); Mo.
Sup. Ct. R. 30.01(d). Because the judgment petitioner wishes
to attack became final before the enactment of the AEDPA on
April 24, 1996, he is entitled to a one-year grace period
which ended on April 24, 1997. See Ford v. Bowersox,
178 F.3d 522, 523 (8th Cir. 1999). The instant petition was
filed more than nineteen (19) years after expiration of the
grace period. Therefore, it is untimely.
extent that petitioner is seeking conditional or
unconditional release, his petitioner's application for
habeas relief is subject to dismissal due to his failure to
exhaust his available state remedies.
Missouri Revised Statutes § 552.040, a committed person
can only petition under § 2554 for either conditional or
unconditional release. Petitioner states that he has sought
both remedies at one time. However, he has not indicated
which remedy he has most recently sought and been denied.
Therefore, in an abundance of caution, the Court will address
both avenues for relief in Missouri.
release is for a limited duration and is qualified by
reasonable conditions. See § 552.040.10(3). To
obtain conditional release a petitioner must prove, by clear
and convincing evidence, that he "is not likely to be
dangerous to others while on conditional release."
§552.040.12(6). A conditional release implies that
despite a mental disease or disorder, the committed person is
eligible for limited freedom from a mental health facility,
subject to certain conditions. Greeno v. State, 59
S.W.3d 500, 504 (Mo. banc 2001).
release, by contrast, can be granted only if the petitioner
shows "by clear and convincing evidence that he does not
have, and in the reasonable future is not likely to have, a
mental disease or defect rendering him dangerous to the
safety of himself or others." §552.040.7. Thus,
Missouri places the burden on the insanity acquittee to prove
he or she qualifies for conditional or unconditional release
by clear and convincing evidence. Grass v.
Reitz, 643 F.3d 579, 581 (8th Cir.2011);
Mo.Rev.Stat. §§ 552.040.7(6) & 552.040.12(6);
State v. Rottinghaus, 310 S.W.3d 319, 324
and convincing evidence is "evidence that instantly
tilts the scales in the affirmative when weighed against the
evidence in opposition so that the court is left with the
abiding conviction that the evidence is true."
Greeno, 59 S.W.3d at 505 (internal citations
omitted). When an individual is acquitted by reason of mental
disease or defect for a dangerous felony, in order to grant
conditional or unconditional release, the court also must
find that the individual "is not now and is not likely
in the reasonable future to commit another violent
crime" and "is aware of the nature of the violent
crime committed ... and presently possesses the capacity to
appreciate the criminality of the violent crime ... and ...
to conform [his or her] conduct to the requirements of law in
the future." Mo.Rev.Stat. § 552.040.20. The denial
of a petition for either conditional or unconditional release
is "without prejudice to the filing of another
application after the expiration of one year."
28 U.S.C. § 2254(b)(1)(A) prohibits a grant of habeas
relief on behalf of a person in state custody unless that
person has "exhausted the remedies available in the
courts of the State." "The exhaustion requirement
of § 2254(b) ensures that the state courts have the
opportunity fully to consider federal-law challenges to a
state custodial judgment before the lower federal courts may
entertain a collateral attack upon that judgment."
Duncan v. Walker,533 U.S. 167, 178-79 (2001). The
requirement prevents a federal court from granting a habeas
petition based on a constitutional violation that could be
redressed adequately by pursuing an avenue of ...