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Bernhardt v. Staats

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

September 21, 2017

ANDREW BERNHARDT, Petitioner,
v.
DANIELLE R. STAATS, et al., Respondents.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

         Petitioner Andrew Bernhardt brings this petition for writ of habeas corpus under 28 U.S.C. § 2254 claiming that there was insufficient evidence to support his convictions for aggravated stalking and armed criminal action. Because I do not have jurisdiction to consider Bernhardt's challenge to his aggravated stalking conviction, and his challenge to the armed criminal action conviction is without merit, I will deny the petition.

         Procedural Background

         After a jury in the Circuit Court of St. Louis County, Missouri, convicted Bernhardt of one count of aggravated stalking and one count of armed criminal action, Bernhardt was sentenced on June 2, 2010, to terms of four years' and five years' imprisonment, respectively, with the sentences ordered to be served concurrently. (Resp. Exh. B at 27-31.)

         Bernhardt appealed his convictions to the Missouri Court of Appeals, arguing that: 1) the evidence was insufficient to show that he communicated a credible threat to the victim, as required to sustain a conviction for aggravated stalking; 2) the statute defining the criminal offense of aggravated stalking was unconstitutionally vague; and 3) the evidence was insufficient to sustain a conviction for armed criminal action because merely holding a gun without pointing or displaying it to or at the victim, his family, or his house does not meet the statutory definition of committing the underlying offense “by, with, or through the use, assistance, or aid” of a deadly weapon. (Resp. Exh. C.) The Missouri Court of Appeals affirmed Bernhardt's convictions on March 1, 2011. State v. Bernhardt, 338 S.W.3d 830 (Mo.Ct.App. 2011).

         Bernhardt thereafter filed a motion for post-conviction relief under Missouri Supreme Court Rule 29.15, challenging the assistance of counsel both at trial and on direct appeal. (Resp. Exh. G at 79-129.) The trial court denied the motion without an evidentiary hearing. (Id. at 155-65.) On August 27, 2013, the Missouri Court of Appeals affirmed the denial of post-conviction relief. Bernhardt v. State, 412 S.W.3d 359 (Mo.Ct.App. 2013) (order) (per curiam).

         When Bernhardt was sentenced in June 2010, he was given 312 days' jail-time credit on both sentences. (Resp. Exh. L.) Bernhardt's four-year sentence for aggravated stalking therefore expired July 31, 2013. His five-year sentence for armed criminal action expired July 31, 2014. (Id.)

         Bernhardt filed his original petition for writ of habeas corpus on July 30, 2014. He amended the petition on August 5, 2014.

         Proper Party Respondent

         When Bernhardt filed his original habeas petition on July 30, 2014, he was no longer under any physical restraint on either conviction. His sentence for aggravated stalking had expired, and he was on parole for armed criminal action. His sentence for armed criminal action, however, expired one day after he filed his original petition and five days before he filed his amended petition.

         In his original petition, Bernhardt named as respondents Danielle R. Staats (his then-current parole officer) and the Missouri State Attorney General. In his amended petition, Bernhardt continued to name Staats and the Missouri State Attorney General as respondents, but he also added the Missouri Board of Probation and Parole as a respondent. When he filed this amended petition, however, the sentence for which he was on parole had fully expired and he was no longer on parole. Accordingly, Staats and the Board were improperly named as respondents in this amended petition, and I will dismiss them from this action.[1]

         For reasons stated later in this opinion, I consider Bernhardt's challenge to his armed criminal action conviction to continue to be ripe for review despite his sentence having expired. Since Bernhardt seeks relief from the effects of this conviction, the appropriate respondent in this action is the Missouri State Attorney General.[2]

         Grounds for Relief

         In his amended petition for writ of habeas corpus, Bernhardt raises the following grounds for relief:

(1) That there was insufficient evidence to support his conviction for aggravated stalking; and
(2) That there was insufficient evidence to support his conviction for armed criminal action because: (a) no reasonable jury could find from the witness's testimony that the witness saw Bernhardt with a gun inside his vehicle, and (b) the mere possession and/or loading of a firearm does not constitute an offense under the armed criminal action statute.

         In response, respondent contends that I do not have jurisdiction to consider the claim raised in Ground 1 of the petition because Bernhardt was not in custody on the relevant conviction when he filed this action. As to Ground 2, respondent argues that the Missouri Court of Appeals properly found there to be sufficient evidence to support Bernhardt's conviction for armed criminal action, and that I should defer to this determination.

         Jurisdiction

         Federal courts have jurisdiction to consider habeas petitions from persons who are in custody in violation of the Constitution, laws, or treaties of the United States. At the time a habeas petitioner brings his petition, however, he must be in custody under the conviction or sentence he seeks to attack. Maleng v. Cook, 490 U.S. 488, 491 (1989). Where a sentence imposed on a conviction has fully expired at the time the petition is filed, the petitioner is no longer “in custody” under that conviction. Id. at 491-92. In circumstances where, as here, a petitioner files a habeas petition while serving the longer of concurrent terms of imprisonment after the shorter sentence has expired, the petitioner is in custody on the conviction for which he is serving the longer sentence but is no longer in custody on the conviction for which he received the shorter, expired sentence. See Mays v. Dinwiddie, 580 F.3d 1136, 1140-41 (10th Cir. 2009).

         In his first ground for relief here, Bernhardt challenges the sufficiency of the evidence supporting his conviction for aggravated stalking. However, when Bernhardt filed this habeas action in July 2014, his four-year sentence on this conviction had already expired. He therefore was no longer in custody under his conviction for aggravated stalking when he filed his petition, which results in my having no jurisdiction to entertain his claim challenging that conviction. Mal ...


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