United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner's motion to stay
and abey pursuant to Rhines v. Weber, 544 U.S. 269
(2005). The motion will be denied.
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. 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
(21stJudicial 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.
amended petition for writ of habeas corpus relates to his
revocation of parole. See Docket No. 7. He states
that that there are three claims in his amended petition that
his appointed counsel failed to raise in his Rule 24.035
motion. Namely, petitioner asserts that he asked counsel to
raise: (1) petitioner's inability to pay restitution
fees; (2) the failure by the Court and the prosecutor to
provide him with adequate due process; and (3) the
Court's failure to allow petitioner the right to confront
and cross-examine witnesses at the probation revocation
motion to stay and abey, petitioner says that he has recently
filed a Rule 91 habeas petition in the state court in an
attempt to exhaust those claims not raised in the Rule 24.035
motion. Petitioner moves this Court for a stay and abeyance
while he seeks to litigate his unexhausted claims in the
granting a stay effectively excuses a petitioner's
failure to present his claims first to the state courts, stay
and abeyance is only appropriate when the district court
determines there was good cause for the petitioner's
failure to exhaust his claims first in state court."
Rhines, 544 U.S. at 277. Entitlement to a stay
requires not only consideration of whether petitioner had
good cause for his failure to exhaust, but also whether his
unexhausted claims are “plainly meritless, "
whether the claims are potentially meritorious, and whether
the petitioner engaged in intentionally dilatory litigation
tactics. Id. at 277-78.
to considering the merits of a state petitioner's habeas
claims, a federal court must determine whether the federal
constitutional dimensions of the petitioner's claims were
presented to the state court. Smittie v. Lockhart,
843 F.2d 295, 296 (8th Cir.1988). If not, the petitioner may
The Court has reviewed Missouri.Case.Net and found no record
of a pending Missouri State Habeas Corpus action/Rule 91
brought by petitioner relating to this issue. still meet the
exhaustion requirement if there are no currently available
non-futile state remedies by which he could present his
claims to the state court. Smittie, 843 F.2d at 296.
the petitioner's claims are deemed exhausted because he
has no available state court remedy, the federal court still
cannot reach the merits of the claims unless the petitioner
demonstrates adequate cause to excuse his state court default
and actual prejudice resulting from the alleged
unconstitutional error, or that a fundamental miscarriage of
justice would occur if the Court were not to address the
claims. Coleman v. Thompson, 501 U.S. 722 (1991);
Wainwright v. Sykes, 433 U.S. 72, 87 (1977);
Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th
Cir.1995); Stokes v. Armontrout, 893 F.2d 152, 155
(8th Cir.1989). Before reviewing any claims raised in a
habeas petition, the Court may require that every ground
advanced by the petitioner survive this exhaustion analysis.
Rhines, 544 U.S. at 269 (2005).
case, petitioner does not have any non-futile state remedies
by which he can present his unexhausted claims to the state
courts. Rule 24.035 is the “exclusive procedure by
which [a convicted] person may seek relief in the sentencing
court” for claims that his conviction violated the
state or federal constitutions. Mo. S.Ct. R. 24.035. And any
such motion must be filed no later than 90 days from the
issuance of the mandate by the appellate court on direct
appeal or if no appeal of such judgment or sentence is taken,
the motion shall be filed within 180 days of the date the
person is delivered to the custody of the Department of
Corrections. Id. Petitioner cannot go back in time
and file a new Rule 24.035 motion, and his habeas corpus
motion brought pursuant to Rule 91 would not be able to
properly exhaust any of the three claims he wishes his
counsel would have pursued in his prior Rule 24.035 motion.
result, all of petitioner's claims must be deemed
exhausted, and the petition is not subject to stay and
abeyance under Rhines.
IT IS HEREBY ORDERED that petitioner's motion to stay and