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 response to
the order to show cause.Having carefully reviewed
petitioner's response, the Court concludes that her
arguments are without merit, and that the instant action is
time-barred under 28 U.S.C. § 2244.
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 mandate issued on September 25, 2013. Id.
September 22, 2016, petitioner filed a second motion to
vacate pursuant to Mo.Sup.Ct.R.24.035, asserting 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). See Meyers
v. State, 16MR-CV01094 (10thCircuit Court,
Marion County Court). Petitioner voluntarily dismissed her
motion to vacate on November 29, 2017. Id.
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 once again asserted in her petition that
she was entitled to relief from her conviction and sentence
as a result of Bazell, 497 S.W.3d at 263.
Petitioner's Rule 91 petition was denied on October 6,
2017. See Meyers v. Boyles, No. 17LV-CC00022
(43rd Circuit, Livingston Circuit Court).
filed her federal writ of habeas corpus, pursuant to 28
U.S.C. § 2254 by placing the current application in the
mail on November 6, 2017.
to 28 U.S.C. § 2244(d), a petitioner has one year from
the date her judgment of conviction becomes final within
which to file a petition for writ of habeas corpus. Where, as
here, petitioner did not file a direct appeal of her
conviction, her conviction became final ten days after the
judgment was entered on November 1, 2010. See Mo. R.
Civ. P. § 81.04(a).
one-year limitations period was tolled, however, during the
pendency of petitioner's post-conviction proceedings,
that is, from April 25, 2011, through September 25, 2013, the
date the mandate was issued. See Payne v. Kemna, 441
F.3d 570, 572 (8th Cir. 2006) (post-conviction relief
proceedings final on issuance of the mandate).
can be no doubt that petitioner is over three years
late in filing her § 2254 in this Court. The
mandate issued in her post-conviction appeal on September 25,
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). Thus, her petition for writ of
habeas corpus was due to this Court no later than
September 25, 2014. Petitioner did not file her
application for writ of habeas corpus in this Court until
November 6, 2017. Thus, petitioner failed to file her habeas
corpus within the proper time period.
order to assert the timeliness of her petition, she argues
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 2016),
which was decided by the Missouri Supreme Court on September
20, 2016. She appears to argue that the holding in
Bazell, restarted ...