United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner's response to
the Order to Show Cause why this action should not be
dismissed as untimely. After reviewing the response brief,
the Court finds that petitioner's application for writ of
habeas corpus brought pursuant to 28 U.S.C. § 2254
should be dismissed as time-barred.
April 14, 2010, petitioner pled guilty to DWI - Chronic
Offender. Missouri v. Guthrie, No. 09RA-CR00797-01
(Randolph County). On the same day, the court sentenced him
to 15 years' imprisonment. However, the court suspended
the execution of the sentence ("SES"). Petitioner
did not file a direct appeal of his conviction and sentence.
three years later, on May 1, 2013, the court revoked
petitioner's probation and remanded him to the Department
of Corrections. Petitioner did not file an appeal of his
October 1, 2014, petitioner filed a Rule 91 habeas petition
challenging the revocation. Guthrie v. Russell, No.
14SF-CC00196 (St. Francois County). The court denied the
petition on March 2, 2015. On November 2, 2015, he filed a
second Rule 91 petition in the Missouri Court of Appeals,
which the court denied on November 30, 2015. Guthrie v.
Steele, No. ED103623 (Mo.Ct.App.). And on February 2,
2017, he filed a third petition in the Missouri Supreme
Court, which was denied on April 4, 2017.
filed the instant petition on July 10, 2017, which is the
date he placed it in the prison mail system. In his response
brief, petitioner states that he is only challenging the
to 28 U.S.C. § 2244(d), a petitioner has one year from
the date his judgment of conviction becomes final within
which to file a petition for writ of habeas corpus. The
limitations period is tolled during the time which a properly
filed motion for post-conviction relief is pending in the
Missouri, a suspended execution of sentence is a no different
than an executed sentence for purposes of finality.
Edwards v. Missouri, 215 S.W.3d 292, 295 (Mo.Ct.App.
2007). If no direct appeal is taken, a Missouri conviction
becomes final ten days after the judgment is entered. Mo. R.
Civ. P. § 81.04(a). Petitioner's judgment of
revocation became final on May 11, 2013. Accordingly, the
limitations period expired on May 11, 2014, well before
petitioner filed his first application for state habeas
asserts in his response to the Order to Show Cause that his
limitations period should be tolled by a post-conviction
motion he filed in Randolph County Circuit Court on June 5,
2013. See Guthrie v. State, No. 13RA-CV00609
(14th Circuit Court, Randolph County). The Court
has reviewed Missouri.Case.Net and found that this matter was
dismissed by the state court on August 28, 2013, for being
filed "well outside the time constraints of Missouri
Supreme Court Rule 24.035." Id.
post-conviction proceedings only toll the limitations period
if they are "properly filed." 28 U.S.C. §
2244(d)(2). Because petitioner's post-conviction motion
was not properly filed under state law, it cannot toll the
limitations period. Walker v. Norris, 436 F.3d 1026,
1032 (8th Cir. 2006) citing Pace v. DiGuglielmo, 544
U.S. 408, 417 (2005) (If the state court rejected
petitioner's post-conviction application "as
untimely, it was not properly filed, and he is not entitled
to statutory tolling...").
light of the aforementioned, petitioner has not shown that
his application for writ of habeas corpus in this Court was
timely. As such, his petition will be dismissed as
IT IS HEREBY ORDERED that petitioner's
application for writ of habeas corpus is DENIE ...