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Simmons v. Caspari

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

September 19, 2017

DAVID SIMMONS, Petitioner,
v.
PAUL CASPARI, Respondent.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE

         This closed matter under 28 U.S.C. § 2254 is before the Court on state prisoner David Simmons's “Motion Pursuant to Rule 60(d)(3) Fraud on the Court.” (Doc. 81) No response was filed to the motion and the time to do has passed. For the following reasons, the Court will dismiss the motion for lack of jurisdiction, as a second or successive habeas petition for which petitioner failed to obtain authorization from the Eighth Circuit Court of Appeals.

         I. Procedural Background

         On October 24, 1991, a jury in the Circuit Court of St. Louis County, Missouri, found petitioner guilty of Murder Second Degree and Burglary First Degree. Petitioner was sentenced as a prior offender to consecutive terms of life imprisonment and fifteen years imprisonment on the respective charges. Petitioner filed a motion for post-conviction relief under Missouri Supreme Court Rule 29.15, which was denied after an evidentiary hearing. On consolidated appeal, the Missouri Court of Appeals affirmed petitioner's conviction and the denial of his motion for post-conviction relief. Petitioner's motion to recall the mandate was summarily denied.

         Petitioner filed a petition for writ of habeas corpus in the instant case on March 18, 1997. Petitioner filed an amended petition that asserted four claims of ineffective assistance of appellate counsel; three of the claims concerned direct appeal and the fourth concerned post-conviction appeal. The Report and Recommendation of United States Magistrate Judge Frederick R. Buckles listed petitioner's claims as follows:

(1) That petitioner received ineffective assistance of appellate counsel in that counsel failed to raise on direct appeal the claim that petitioner was denied his right to be sentenced by a jury inasmuch [as] the court improperly determined petitioner to be a prior offender;
(2) That petitioner received ineffective assistance of appellate counsel in that counsel failed to raise on direct appeal the claim that the trial court erroneously forced petitioner to proceed to trial with appointed counsel with whom petitioner had irreconcilable conflicts;
(3) That petitioner received ineffective assistance of appellate counsel in that counsel failed to raise on direct appeal the claim that the trial court lacked jurisdiction over petitioner's cause inasmuch as petitioner was denied a speedy trial under Mo. Rev. Stat. § 217.450; and
(4) That petitioner received ineffective assistance of appellate counsel in that counsel abandoned on post-conviction appeal petitioner's claims of ineffective assistance of trial counsel.

         Report and Recommendation at 2 (Doc. 24).

         With respect to the third claim, ineffective assistance of counsel for failing to raise on direct appeal that the trial court lacked jurisdiction because petitioner was denied his rights under the Missouri speedy trial statute, the Report and Recommendation stated in pertinent part:

On March 26, 1991, petitioner filed a proper request for disposition of his cause within 180 days. (See Resp. Exh. B at 8; Exh. C at 19-20; Exh. D at 38.) Trial commenced on petitioner's criminal cause of action on October 21, 1991, 209 days after petitioner's properly filed request. (Resp. Exh. A.) A review of the record shows, however, that the trial court expressly tolled the statute from September 13, 1991, through October 21, 1991, finding good cause to be shown on account of defense counsel's unpreparedness for trial given the short period of time that she was assigned to the case, the complexity of the case, and the number of witnesses to be interviewed and/or investigated. (Resp. Exh. B at 95-103; Exh. C at 62, 66-69.) As such, the statute did not run during this thirty-eight-day period. To the extent petitioner argues that the statute was not tolled during this period inasmuch as he did not consent to counsel's request for continuance, the undersigned notes that Missouri courts have determined not to charge the State any delay in the commencement of trial even where defense counsel requests a continuance without the consent of the defendant. See, e.g., State v. Allen, 954 S.W.2d 414, 417 n.2 419 n.4 (Mo.Ct.App. 1997).
Subtracting the tolled thirty-eight-day period from the total time taken to bring petitioner to trial from the date of his request, only 171 days elapsed. As such, petitioner was brought to trial within the 180-period contemplated ...

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