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Ballard v. Wallace

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

July 26, 2017

JAMES H. BALLARD, Petitioner,
v.
IAN WALLACE, Respondent.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Petition of James Ballard for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Petition is fully briefed and ready for disposition.

         I. Procedural History

         Petitioner James Ballard is currently incarcerated at the Southeast Correctional Center located in Charleston, Missouri, pursuant to the judgment and sentence of the Circuit Court of Montgomery County, Missouri. (Resp't's Ex. B pp. 5, 8) On July 28, 2010, a jury found Petitioner guilty of one count of first-degree sodomy, two counts of first-degree endangering the welfare of a child, one count of second degree statutory sodomy, and three counts of use of a child in sexual performance.[1] (Id. pp. 5, 8, 25) On September 27, 2010, the trial court sentenced Petitioner to 30 years' imprisonment on the first-degree sodomy conviction and 15 years' imprisonment on each remaining count, said sentences to run concurrently. (Id. at pp. 5, 8, 26; Resp't's Ex. I pp. 1-2)

         Petitioner appealed the judgment, and on November 22, 2011, the Missouri Court of Appeals affirmed the judgment of the trial court. (Resp't's Ex. E) Petitioner then filed a motion for rehearing and/or transfer to the Supreme Court of Missouri in the Missouri Court of Appeals. (Resp't's Ex. K) The motion was denied on January 10, 2012. (Id.) Petitioner did not file a request to transfer in the Supreme Court of Missouri. See Mo. S.Ct. R. 83.04.

         On March 1, 2012, Petitioner filed a pro se Motion to Vacate, Set Aside, or Correct Judgment or Sentence pursuant to Missouri Supreme Court Rule 29.15. (Resp't's Ex. F pp. 7-12) The motion court denied Petitioner's motion on the basis that the Forma Pauperis Affidavit was not notarized. (Id. at p. 13) Petitioner filed a second motion for post-conviction relief with a notarized affidavit on April 2, 2012. (Id. at pp. 14-19) Appointed counsel filed an amended Rule 29.15 motion on or about August 6, 2012. (Id. at pp. 27-31) On November 1, 2012, the motion court denied Petitioner's motion for Rule 29.15 post-conviction relief. (Id. at pp. 33-42)

         Petitioner appealed the motion court's denial of post-conviction relief, and on September 17, 2013, the Missouri Court of Appeals affirmed the motion court's judgment denying Petitioner's Rule 29.15 motion for post-conviction relief. (Resp't's Ex. I) The Missouri Court of Appeals issued its Mandate on October 10, 2013. (Id. at pp. 10-11)

         On September 12, 2014, Petitioner filed the present petition for habeas relief in federal court. (ECF No. 1) Petitioner alleges three grounds in his petition: (1) the trial court erred in denying Petitioner's constitutional right to self-representation; (2) the trial court erred in excluding certain evidence; and (3) trial counsel was ineffective for failure to call witnesses or object to the prosecution's line of questioning.

         II. Discussion

         Respondent asserts that Petitioner's habeas petition is untimely and that Petitioner has failed to demonstrate that equitable tolling is warranted. Thus, Respondent argues that the Court must dismiss the petition as time-barred. Petitioner claims that he filed his petition on day 365 such that the petition is timely.

         "The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year limitations period for state prisoners to file federal habeas corpus petitions." Bear v. Fayram, 650 F.3d 1120, 1122 (8th Cir. 2011) (citing 28 U.S.C. § 2244(d)(1)). This one-year period begins to run 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. § 2244(d)(1)(A). The limitations period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . ." 28 U.S.C. § 2244(d)(2). However, '"the time between the date that direct review of a conviction is completed and the date that an application for state post-conviction relief is filed counts against the one-year period.'" Bear v. Fayram, 650 F.3d 1120, 1122 (8th Cir. 2011) (quoting Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001)).

         Here, Respondent asserts that the Missouri Court of Appeals denied Petitioner's motion for rehearing and/or to transfer on January 10, 2012, after which Petitioner had 15 days to file a motion to transfer in the Supreme Court of Missouri and request review. Mo. S.Ct. R. 83.04. Thus, the statute of limitations began running on January 25, 2012, when the time for seeking direct review expired. Petitioner, on the other hand, contends that his conviction did not become final, and the statute of limitations did not begin to run, until February 1, 2012, the date the Missouri Court of Appeals issued the Mandate.

         The Court finds that Petitioner's habeas petition is time-barred under the AEDPA. In Gonzales v. Thaler, the United States Supreme Court held that, for petitioner who do not pursue direct review all the way to the United States Supreme Court, the judgment becomes final "when [the] time for seeking review with the State's highest court expire[s]." 565 U.S. 134, 150 (2012); see also King v. Hobbs, 666 F.3d 1132, 1135 n. 2 (8th Cir. 2012) (noting that the Supreme Court's decision in Gonzales v. Thaler abrogated the Eighth Circuit's determination that the direct-appeal mandate was the conclusion of direct review in a habeas petitioner's case). The Supreme Court of Missouri is the State's highest court. King, 666 F.3d at 1135. Under Missouri law:

If an application for transfer under Rule 83.02 has been denied, the case may be transferred by order of this Court on application of a party for any of the reasons specified in Rule 83.02 or for the reason that the opinion filed is contrary to a previous decision of an appellate court of this state. Application for such transfer shall be filed in this ...

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