United States District Court, E.D. Missouri, Eastern Division
DALE D. BOOKWALTER, Petitioner,
TROY STEELE, Respondent.
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
matter is before the Court on movant's application for
writ of habeas corpus brought pursuant to 28 U.S.C. §
2254. Although petitioner's post-conviction proceedings
are still pending in Stoddard County Court at this time, the
Court will issue process on petitioner's application for
habeas corpus in this Court as a result of the unreasonable
delay in petitioner's state court remedies. The Court
will also appoint counsel in this matter. See 28
U.S.C. § 1915(e)(1).
11, 2009, a jury convicted movant of first-degree statutory
sodomy. Missouri v. Bookwalter, No. 08DU-CR01415-01
(35th Judicial Circuit, Dunklin County Court).
Movant filed a timely appeal, and on November 17, 2010, the
Missouri Court of Appeals affirmed. Missouri v.
Bookwalter, No. SD30013 (Mo.Ct.App.). On March 2, 2011,
movant filed a Rule 29.15 motion for post-conviction relief
in Stoddard County Circuit Court. Bookwalter v.
Missouri, No. 11SD-CC00033 (35th Judicial
Circuit, Stoddard County Court). Petitioner was appointed
counsel in his post-conviction proceedings, and an amended
motion to vacate his sentence was filed on June 15, 2011.
trial Judge recused himself from the post-conviction relief
proceedings on or about June 20, 2011. The Honorable John
Spielman was assigned to the matter on June 23, 2011.
Although petitioner's appointed counsel had requested an
evidentiary hearing at the time she filed the amended motion
to vacate on June 15, 2011, it was not until May 31, 2016,
that the Court granted the motion for evidentiary hearing, as
well as petitioner's motion to take depositions in the
action. Nonetheless, an evidentiary hearing date has still
not been set in the post-conviction action. However,
petitioner's appointed counsel has taken the depositions
of petitioner's trial and appellate counsel.
unjustified delay by a state court in adjudicating a
post-conviction review petition may give rise to both a due
process violation and relief from the exhaustion requirement.
In deciding whether delay excuses exhaustion, courts consider
the history of the petitioner's attempts to obtain state
remedies, including the length of the delay, whether there
has been any activity or progress in the state court action,
whether the delay is attributable to the state or to the
petitioner, and prejudice to the petitioner. See, e.g.,
Pool v. Wyrick, 703 F.2d 1064, 1066-67 (8th Cir. 1983)
(per curiam) (where petitioners had not obtained any
state-court ruling on post-conviction motions after delays of
more than two years, court of appeals remanded case to the
district court with directions to consider the habeas
petition on the merits if the state court still had not
rendered a decision within a stated period of time); Lee
v. Stickman, 357 F.3d 338, 343- 44 (3d Cir. 2004)
(nearly eight-year delay); Harris v. Champion, 15
F.3d 1538, 1555, 1557 (10th Cir. 1994) (delay of more than
two years gives rise to a rebuttable presumption that
exhaustion should be excused).
Court has reviewed the state court file, as well as
petitioner's amended application for post-conviction
relief, Bookwalter v. Missouri, No. 11SD-CC00033
(35th Judicial District, Stoddard County Court).
In his amended motion, petitioner argues that he was denied
his rights to effective assistance of counsel, a fair trial,
due process of law, and to be free from cruel and unusual
punishment in violation of the Fifth, Sixth and Fourteenth
Amendments of the United States Constitution.
raises multiple claims for relief. He claims that the
prosecutor failed to disclose, prior to trial that a weapon
had allegedly been used in the commission of the charged
crime. Petitioner claims that his trial attorney was
ineffective for: (1) failing to call key defense witnesses;
(2) failing to interview and/or call expert witnesses; (3)
failing to make certain objections to evidence introduced at
trial (that petitioner purportedly had a gun during the
crime) and for the fact that petitioner was brought into the
courtroom in shackles; (4) failing to engage in adequate
discovery; (5) failing to advise certain witnesses that they
could not testify about certain topics according to the rape
shield exception; (6) misleading petitioner into thinking
that the jury engaged in the sentencing decision which caused
him not to accept a plea deal; (7) failing to object to the
prosecutor's inability to prove all of the elements of
the crime, namely that the victim was 14 years of age; (8)
failing to show up at a polygraph examination to represent
petitioner; and (9) failing to object to certain jury
instructions and/or object to the mention of an unnamed and
additionally claims that the trial Judge engaged in a due
process violation when the Judge made petitioner's
counsel go to trial even though trial counsel admitted he was
not prepared to proceed to trial.
petitioner asserts that his appellate counsels was
ineffective because he “only raised one issue on
appeal” because “he would not listen to me”
and raise additional grounds.
Court finds that the nearly seven-year delay exercised by the
post-conviction court excuses the required exhaustion
required in 28 U.S.C. § 2254(b)(1)(A), and
petitioner's case should be considered on the merits at
it appears from the facts alleged in the petition that the
Court and petitioner would benefit from appointment of
counsel to represent petitioner, who is proceeding pro se.
Therefore, the Court will appoint counsel in this matter.
See 28 U.S.C. § 1915(e)(1).
IT IS HEREBY ORDERED that petitioner's
motion for leave to proceed in forma ...