United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER.
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Missouri state prisoner Sheila
David's petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. For the reasons set forth below, habeas
relief will be stayed to permit Petitioner to exhaust state
petition, Petitioner challenges her April 20, 2012 conviction
for the offense of stealing in excess of $25, 000 and her
sentence of twenty year's imprisonment. Petitioner raises
three claims: (1) Petitioner's plea was involuntarily and
unknowingly entered because it was induced by a promise made
by the state court that she would receive probation so that
she could pay restitution; (2) plea counsel was ineffective
in that she failed to present mitigating evidence; and (3)
had plea counsel presented mitigating evidence, Petitioner
would have received a lesser sentence.
March 9, 2017, Petitioner, through appointed counsel, filed a
state habeas corpus petition, which is currently pending
before the Missouri Supreme Court, State ex rel Sheila
David v. Angela Mesmer, No. SC96263 (Mo. filed March 9,
2017). There, Petitioner argues that she is being detained in
violation of her right to due process because the felony
enhancement of her stealing conviction violated the clear and
unambiguous language of the stealing statute, Mo. Rev. Stat.
§§ 570.030.1 and 570.030.7 (2002). Specifically,
Petitioner cites the recent decision of State v.
Bazell, 497 S.W.3d 263 (Mo. banc 2016), in which the
Missouri Supreme Court held that the provisions of Mo. Rev.
Stat. § 570.030.3 (West 2009), could not be used to
enhance a defendant's offenses for stealing firearms to
felony stealing. The Supreme Court recently issued a decision
in State v. Smith, 522 S.W.3d 221, 231 (Mo. 2017)
reversing and remanding for resentencing as misdemeanor
stealing convictions enhanced under the statute.
sentence was enhanced under the same provision, and she
argues that she has been serving a 20-year sentence for
conduct that, under Bazell, was merely a
misdemeanor. But for the aforementioned stealing conviction,
Petitioner contends she would be eligible for release. In
light of State v. Smith, it is possible that the
issues raised in Petitioner's federal habeas petition
will be resolved by the state court.
matter of comity, the state courts should have the first
opportunity to review federal constitutional issues and to
correct federal constitutional errors made by the state's
trial courts. Baldwin v. Reese, 541 U.S. 27, 29
(2004); O'Sullivan v. Boerckel, 526 U.S. 838,
844-45 (1999). A federal habeas petitioner is thus required
to exhaust all available avenues of relief in the state
courts before the federal courts will consider a claim. 28
U.S.C. § 2254(b), (c). To satisfy the exhaustion
requirement, “state prisoners must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process.”
O'Sullivan, 526 U.S. at 845. Compliance with the
exhaustion requirement is excused only if “there is an
absence of available State corrective process” or
“circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28
U.S.C. § 2254(b)(1)(B).
state prisoners can challenge a stealing conviction in a
state habeas corpus action under Missouri Supreme Court Rule
91. State ex rel. Nixon v. Jaynes, 73 S.W.3d 623,
624 (Mo. 2002). There is no time limit for filing such an
action. Jones v. Sachse, No. 4:11CV01310 SNLJ, 2014
WL 4410394, at *14 (E.D. Mo. Sept. 8, 2014) (citing
Fletcher v. Armontrout, 725 F.Supp. 1075, 1086
such a state habeas action is filed while a petitioner's
federal habeas claim is pending, a federal district court has
the discretion to stay, rather than dismiss, a
petitioner's habeas claim pending exhaustion of available
state remedies. See Rhines v. Weber, 544 U.S. 269,
276 (2005). In determining whether a stay is appropriate, the
Court may consider whether the petitioner's federal
habeas claims will be time-barred should the matter be
dismissed without prejudice and refiled at a later time.
See Akins v. Kenney, 410 F.3d 451, 455 (8th Cir.
2005); Walker v. Houston, No. 4:07CV3208, 2007 WL
2903005, at *1 (D. Neb. Oct. 4, 2007).
timely filed her federal habeas action. However, the statute
of limitations has since run on her claims, and she would be
barred from re-filing her petition. Therefore, under the
circumstances of this case, the Court will exercise its
discretion to stay the current action rather than dismiss it
for failure to exhaust state remedies.
IT IS HEREBY ORDERED that the petition of
Sheila David for a writ of habeas corpus relief is further
STAYED pending final disposition by the
Missouri Supreme Court on her state habeas corpus action.
IS FURTHER ORDERED that Petitioner shall notify this
Court of ...