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Meyers v. McBee

United States District Court, E.D. Missouri, Northern Division

April 30, 2018

LISA KAY MEYERS, Petitioner,
v.
CHRIS MCBEE, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on petitioner's response to the order to show cause.[1]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.

         Background

         On 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 County Court).

         Petitioner 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 Court).

         Petitioner 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.

         On 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.

         Petitioner 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).

         Petitioner 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.

         Discussion

         Pursuant 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).

         The 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).

         There 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.

         In 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 ...


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