United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on the Petition of Anthony
Finerson for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. The Petition is fully briefed and ready for
Anthony Finerson is currently incarcerated at the Western
Missouri Correctional Center in Cameron, Missouri, pursuant
to the sentence and judgment of the Circuit Court of St.
Louis County, Missouri. On May 20, 2002, Petitioner pleaded
guilty to two counts of second-degree statutory rape in the
Circuit Court of St. Louis City, Missouri, case number
22011-01573-01. (Resp't's Ex. F p. 3, ECF No. 16-6)
On March 20, 2003, the court sentenced Petitioner to
concurrent terms of four years. (Id. at p. 4)
Petitioner completed his sentence in 2005. As part of his
sentence, Petitioner Finerson is required to register as a
sex offender. (Resp't's Ex. C, ECF No. 16-3)
January 2013, Petitioner was charged in the Circuit Court of
St. Louis County, Missouri with four counts of failure to
register as a sex offender, case number 13SL-CR01847-01.
(Pet'r's Ex. 1 pp. 2-3, ECF No. 1-1) On June 11,
2013, Petitioner pleaded guilty to two counts of second
degree statutory rape and one count of enticement of a child
in the Circuit Court of St. Louis County, Missouri, case
number 10SL-CR05014-01. (Resp't's Ex. B p. 8, ECF No.
16-2) He was sentenced on October 28, 2013 as a prior and
persistent offender to concurrent terms of 7 years'
imprisonment on each count of statutory rape and 10
years' imprisonment on the enticement charge.
(Id.) On June 13, 2014, pursuant to Petitioner's
plea of guilty in case number 13 SL-CR01847-01, the Circuit
Court of St. Louis County sentenced Petitioner to 4
years' imprisonment on each count of failure to register
as a sex offender, to run concurrent with all 4 counts, the
sentence in case number 10SL-CR05014-01, and all federal
sentences. (Pet'r's Ex. 1 pp. 2-6) Petitioner
Finerson is presently serving these sentences.
does not challenge the 2013 and 2014 sentences he is now
serving. Instead, he challenges 2003 conviction and sentence
in St. Louis City, case number 22011-01573-01, and
specifically the requirement that he register as a sex
offender. Petitioner did not appeal his conviction and
sentence or file a motion for post-conviction relief with
respect to his 2003 conviction. However, on February 26,
2014, Petitioner filed a petition for a writ of habeas corpus
in the Circuit Court of St. Francois County, Missouri, case
number 14SF-CC00042. (Resp't's Ex. A, ECF No. 16-1)
The circuit court denied Petitioner's petition seeking to
vacate his St. Louis City convictions on August 7, 2014.
(Resp't's Ex. C, ECF No. 16-3) The court specifically
found that Rule 91 habeas relief was not available to
Petitioner because he was challenging convictions that
expired in 2005, not his current confinement. (Id.
at p. 2) Petitioner then filed a petition for a writ of
habeas corpus in the Missouri Court of Appeals Western
District, and on September 17, 2014, the Missouri Court of
Appeals denied the Petition. (Resp't's Exs. D and E,
ECF Nos. 16-4, 16-5)
November 24, 2014, Petitioner filed the present petition for
habeas relief in federal court. (ECF No. 1) Petitioner
alleges three grounds in his petition: (1) trial counsel was
ineffective for failing to advise Petitioner of the
collateral consequences of his guilty plea, namely that he
had to comply with amendments to the registration statute,
Mo. Rev. Stat. § 589.407; (2) Petitioner's guilty
plea was involuntary because counsel failed to inform
Petitioner that by pleading guilty he waived the right to the
prohibition against ex post facto sex offender
registration laws; and (3) Missouri's sex offender
registration laws, Mo. Rev. Stat. §§ 589.400,
et seq., and the federal registration statute, 42
U.S.C. § 16901, etseq., violate the Commerce
Clause and the right to interstate travel. Each of these
grounds pertains to Petitioner's 2003 conviction and
sentence in the Circuit Court of St. Louis City, case number
asserts that Petitioner's habeas Petition should be
denied because Petitioner failed to file his Petition within
one year as required by 28 U.S.C. § 2244(d)(1)(A).
"The Antiterrorism and Effective Death Penalty Act of
1996 ('AEDPA") established a one-year limitations
period for state prisoners to file federal habeas corpus
petitions." Bear v. Fayram, 650 F.3d 1120, 1122
(8th Cir. 2011) (citing 28 U.S.C. § 2244(d)(1)). This
one-year period begins to run from "the date on which
the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review."
28 U.S.C. § 2244(d)(1)(A). A habeas petition filed after
the expiration of the limitations period is untimely and must
be dismissed on that basis. Bear, 650 F.3d at 1122,
the record shows, and Petitioner does not dispute, that
Petitioner is challenging his 2003 conviction and sentence in
St. Louis City. He raises claims of ineffective assistance of
counsel, involuntariness of his guilty plea, and the
unconstitutionality of the sex offender statutes, which
prevent him from interstate travel. (Pet'r's Response
to Resp't's Show Cause, ECF No. 21) Because over ten
years have passed between the expiration date for Petitioner
to appeal his 2003 conviction and the date he filed the
present Petition for habeas relief, the AEDPA's statute
of limitations bars review of Petitioner's habeas
Petition. Bear, 650 F.3d at 1122. Further, this
period is not subject to statutory tolling, as Petitioner
filed his Rule 91 Habeas Petition in state court in 2014,
well after the one-year limitations period expired. See
Gray v. Gammon, 283 F.3d 917, 918 (8th Cir. 2002)
(finding Rule 91 proceeding did not toll the statute of
limitations in § 2244(d)(1) where petitioner did not
file his Rule 91 petition until after the one-year
limitations period expired).
the Court notes that Petitioner has failed to demonstrate
that equitable tolling would be appropriate. Under the
doctrine of equitable tolling, § 2244(d)'s statutory
limitations period may be tolled if a petitioner can show
'"(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.'"
Earl v. Fabian, 556 F.3d 717, 722 (8th Cir. 2009)
(quoting Lawrence v. Florida, 549 U.S. 327, 336
(2007) (internal citation and quotation marks omitted)).
"In this circuit 'equitable tolling is appropriate
only under limited conditions, for example, where
extraordinary circumstances beyond a prisoner's control
prevent the timely filing of a petition' or where the
'conduct of the defendant has lulled the plaintiff into
inaction.'" Id. (quoting Gassier v.
Bruton, 255 F.3d 492, 495 (8th Cir. 2001) (internal
quotation marks omitted)). Here, Petitioner asserts that he
continues to suffer the collateral consequences of his
expired sentence that were not known during the time
limitation period. (Pet'r's Response Ex. 1 p. 1, ECF
No. 21-1) The Court finds that Petitioner has not
demonstrated an extraordinary circumstance beyond
Petitioner's control which made it impossible for him to
file a timely petition, and he has failed to point to any
conduct that could have lulled him into inaction.
Cross-Bey v. Gammon, 322 F.3d 1012, 1015 (8th Cir.
2003). Further, Petitioner did not pursue his rights
diligently, as he waited over ten years to file his federal
habeas petition. The Court finds that equitable tolling is
not justified in this case. Thus, the Court is barred from
reviewing the untimely petition on the merits, and the Court
will therefore dismiss the petition. Hatcher v.
Hopkins, 256 F.3d 761, 763 (8th Cir. 2001).
Certificate of Appealability
of the Rules Governing § 2254 Cases in the United States
District Court provides: "[t]he district court must
issue or deny a certificate of appealability when it enters a
final order adverse to the applicant." "In order to
obtain a certificate of appealability on a claim that the
district court denied on procedural grounds, [Petitioner]
must demonstrate both 'that jurists of reasons would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right, and that jurists
of reason would find it debatable whether the district court
was correct in its procedural ruling.'" Khaimov
v. Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
"Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further."
Slack, 529 U.S. at 484. The Court finds that
Petitioner's federal habeas petition is clearly
time-barred under the ADEPA, and no reasonable jurist could
find the petition was timely filed. Therefore, no certificate
of appealibility will issue.
IT IS HEREBY ORDERED that the Petition of
Anthony Finerson for a Writ of Habeas Corpus pursuant ...