United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner's application
for writ of habeas corpus brought pursuant to 28 U.S.C.
§ 2254. The petition appears to be barred by §
2254's one-year limitations period, and the Court will
order petitioner to show cause why the petition should not be
October 6, 2010, petitioner pled guilty to each of seven (7)
counts of C felony stealing in the Circuit Court of Marion
County, Missouri. See State v. Meyers, No.
10MR-CR00017-01 (10th Judicial Circuit, Marion
County Court). On November 1, 2010, petitioner was sentenced
to serve terms of three (3) years' imprisonment on each
of the seven (7) counts in the Missouri Department of
Corrections, with said sentences to run consecutively to each
other, and concurrently to a seven-year (7) sentence
petitioner received in the Circuit Court of Pike County on
October 12, 2010. See State v. Meyers, No.
10PI-CR00030-01 (45th Judicial Circuit, Pike
did not file a direct appeal of her Marion County sentence;
however, on April 25, 2011, she filed a motion to vacate her
sentence pursuant to Mo.Sup.Ct.R.24.035 asserting ineffective
assistance of trial counsel for failing to present evidence
of petitioner's mental health history at her sentencing
hearing. Petitioner's request for relief was denied on
September 25, 2012. See Meyers v. State, No.
11MR-CV00546 (10th Judicial Circuit, Marion County
appealed the denial of the motion to vacate to the Missouri
Court of Appeals, but her request was denied on September 3,
2013. See Meyers v. State, No. ED99141 (Mo.Ct.App.).
The Court has no record that petitioner filed a prior habeas
corpus action pursuant to 28 U.S.C. § 2254 in this
recently filed, on February 9, 2017, a petition for writ of
habeas corpus, pursuant to Mo.Sup.Ct.R.91, in Livingston
County Court, Missouri. She asserted in her petition that she
was entitled to relief from her conviction and sentence and
should promptly be released from custody as a result of a
2016 Missouri Supreme Court case, Missouri v.
Bazell, 497 S.W.3d 263 (Mo. banc 2016). Petitioner's
Rule 91 petition was denied on October 6, 2017. See
Meyers v. Boyles, No. 17LV-CC00022 (43rd
Circuit, Livingston Circuit Court).
appears to argue that her conviction and sentence for felony
stealing were unlawful and constituted a manifest injustice
pursuant to Missouri v. Bazell, 497 S.W.3d 263 (Mo.
banc), which was decided by the Missouri Supreme Court on
September 20, 2016.
Bazell, the appellant was convicted of various
stealing offenses under Mo.Rev.Stat. § 570.030,
including two convictions for stealing firearms. Id.
at 265. His convictions for stealing firearms were enhanced
to felonies pursuant to § 570.030.3(3)(d). On appeal,
the Missouri Supreme Court reversed the appellant's
convictions for stealing firearms because the Court concluded
that the plain language of § 570.030.3 barred it from
being used to enhance the appellant's stealing offenses.
Id. at 267. The court avoided deciding any
can be no doubt that petitioner is over three years late in
filing her § 2254 in this Court. Her post-conviction
appeal was denied on September 3, 2013, and petitioner had
roughly a year from that time to file her federal writ of
habeas corpus in this Court under 28 U.S.C. §
2244(d)(1)(A). However, petitioner argues that
Bazell should apply in her case to somehow restart
the statute of limitations. Petitioner is incorrect in her
forth in the recent Missouri Supreme Court case of Fite
v. Johnson, ___ S.W.3rd ___, 2017 WL 4930368,
*1-2 (Mo. banc),
Section 570.030.3(1) purports to enhance the offense of
stealing from a misdemeanor to a felony when “the value
of property or services is an element” and the value of
the stolen property or services exceeds $500 but is less than
$25, 000. The value of the stolen property or services,
however, “is not an element of the offense of
stealing.” Bazell, 497 S.W.3d at 266. Although
State v. Passley, 389 S.W.3d 180, 182-83 (Mo. App.
2012), held stealing is a felony when the value of the stolen
property exceeds $500, Bazell held this
interpretation “should no longer be followed”
because the felony enhancement does not apply to the offense
of stealing as defined by § 570.030.1. Bazell,
497 S.W.3d at 267 n.3; State v. Smith, 522 S.W.3d
221, 230 (Mo. banc 2017). As this Court held in State ex
rel. Windeknecht v. Mesmer, SC96159, ___ S.W.3d ___,
2017 WL 4479200 (Mo. banc Oct. 5, 2017), this Court's
interpretation of § 570.030.3(1) first enunciated in
Bazell applies prospectively only, except in
those cases pending on direct appeal. (emphasis
light of the aforementioned, the Court does not see a reason
to apply a retroactivity analysis to § 2244(d). Thus, it
appears that petitioner has filed her application for habeas
corpus relief more ...