United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES SHAW, UNITED STATES DISTRICT JUDGE.
matter is before the Court on state prisoner Sheron
Davis's action pursuant to 28 U.S.C. § 2254. This
case was referred to United States Magistrate Judge Noelle C.
Collins for report and recommendation on all dispositive
matters and for final disposition on all non-dispositive
matters, pursuant to 28 U.S.C. § 636(b).
August 17, 2017, Judge Collins filed a Report and
Recommendation of United States Magistrate Judge which
recommended that Davis's First Amended Petition be denied
and the case dismissed without prejudice, and that his second
motion for stay be denied. Judge Collins concluded that
dismissal without prejudice is required because all of
petitioner's claims are unexhausted and he has not met
his burden to show that exceptional circumstances exist, and
that a stay is not appropriate because the petition does not
include any exhausted claims.
filed timely objections to the Report and Recommendation,
asserting that his claims have been exhausted in the Missouri
courts because Section 558.074, Mo. Rev. Stat., merely
codifies what the Missouri Supreme Court already decreed in
his state habeas petition, and that he has consistently
argued Missouri's scheme of providing the opportunity to
apply for parole eligibility after twenty-five years does not
meet the constitutional requirements of the Supreme
Court's decisions in Miller and
Montgomery. Petitioner contends he has fully litigated
his Miller issues before the Missouri Supreme Court,
and a Rule 91 habeas petition would be futile under 28 U.S.C.
§ 2254(B) because the Missouri Supreme Court has
declared that the ability to apply for parole after
twenty-five years is a sufficient Miller remedy.
Petitioner argues that as a result, the state courts would
not give any Rule 91 petition he might file a meaningful
review. Petitioner also argues that if he is required to
return to state court, this Court should stay the case
because his only opportunity to seek timely relief under
Miller is this habeas petition.
Court has carefully reviewed petitioner's objections and
the entire record of this matter. Following de novo
review, the Court concurs in the recommendation of the
Magistrate Judge, as contained in the well-reasoned and
thorough Report and Recommendation.
background of this case was fully set forth by the Magistrate
Judge, and the Court will repeat it here verbatim without
was convicted by a jury in the Circuit Court of St. Louis,
Missouri, of murder in the first degree (Count I) and of
armed criminal action (Count II). See State v.
Davis, No. 22991-03429A (22nd Judicial Circuit, St.
Louis City). On November 16, 2000, the Circuit Court
sentenced Petitioner, a juvenile at the time of the offense,
to a term of life without the possibility of parole on Count
I to be served concurrently with a term of life on Count II.
Id. On November 27, 2001, the Missouri Court of
Appeals for the Eastern District affirmed the judgment.
See State v. Davis, 66 S.W.3d 109 (Mo.Ct.App. 2001).
Petitioner's request for transfer to the Missouri Supreme
Court was denied on February 26, 2002. See State v.
Davis, SC84238 (Mo. 2002). Petitioner then filed a
motion for post-conviction relief which was denied on June
26, 2002. See Davis v. State, 2202P-04257 (22nd
Judicial Circuit, St. Louis City). Petitioner concedes that
he did not raise any of the issues asserted in his Amended
Petition before the post-conviction court (See Doc.
12 at 2). Petitioner did not appeal the motion court's
25, 2012, the United States Supreme Court issued its opinion
in Miller v. Alabama, 567 U.S. 460 (2012). In
Miller, the Supreme Court held that the Eighth
Amendment prohibits a sentencing scheme that mandates life in
prison without the possibility of parole for juvenile
homicide offenders. Id. at 479. On January 27, 2016,
the United States Supreme Court decided the case of
Montgomery v. Louisiana, 136 S.Ct. 718 (2016),
holding that the rule of Miller must be
retroactively applied to persons sentenced to mandatory life
without parole for juvenile sentences before Miller
was decided. Id. at 732.
18, 2013, Petitioner filed a petition in the Missouri Supreme
Court alleging that his sentence was unconstitutional in
light of Miller. On March 15, 2016, the Missouri
Supreme Court issued an order in Petitioner's case, as
well as all other similarly situated cases, stating:
NOW, THEREFORE, this Court, in order to comply with the
constitutional requirements of Miller and
Montgomery, hereby orders that this petition be
sustained in part. This petitioner shall be eligible to apply
for parole after serving 25 years' imprisonment on his
sentence of life without parole unless his sentence is
otherwise brought into conformity with Miller and
Montgomery by action of the governor or enactment of
necessary legislation. All other claims alleged in the
petition and pending motions are denied without prejudice.
March 21, 2016, Petitioner filed his Petition Under 28 U.S.C.
§ 2254 in this Court raising the following two grounds
(1) Petitioner was denied due process of law and equal
protection when the Missouri Supreme Court illegally altered
his sentence and upheld his conviction for first degree
(2) Petitioner has been denied the right to a reasonable
opportunity for release, which the United States Supreme
Court has said is required for juveniles convicted of
homicide, because Missouri's parole law provides no
guidance or requirement ...