United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
matter is before me upon petitioner's response to my
April 2, 2018 Order directing him to show cause why his
petition should not be dismissed. Having reviewed and
carefully considered petitioner's response, I conclude
that the petition must be dismissed pursuant to Rule 4 of the
Rules Governing § 2254 Cases in the United States
instant petition, petitioner avers he is challenging a 2001
state court judgment entered in the case of State v.
Smith, No. 16CR-00002766-01 (16th Jud. Cir. Apr. 18,
2001). (Docket No. 1 at 1). As set forth in detail in my
April 2, 2018 Order, petitioner filed the instant petition
after the expiration of the limitations period set forth in
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), and he was directed to show cause why
the petition should not be dismissed as untimely.
response, petitioner contends that he is “[r]equesting
this Court to inquire into the case of his illegal
confinement and restraint by respondent pursuant to refusal
to acknowledge the Department of Correction policy/standard
procedure that simply states any offender in the DOC who is
76 years of age with 40% of sentence served is immediately
eligible for release.” (Docket No. 5 at 2). He states
that although he meets the criteria of the Department of
Correction's policy, the respondent “refuses to
release” him. Id. at 2. He further contends
that he did not file this action earlier because he only
recently became eligible for release under this policy.
of the Rules Governing § 2254 Cases in the United States
District Courts provides that a district court shall
summarily dismiss a § 2254 petition if it plainly
appears that the petitioner is not entitled to relief. The
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) requires a federal habeas petition to
be filed within one year after the petitioner's state
conviction becomes final. 28 U.S.C. § 2244(d)(1)(A).
Section 2244(d) is subject to equitable tolling in
appropriate cases. Holland v. Florida, 560 U.S. 631,
645 (2010); see also Jihad v. Hvass, 267 F.3d 803,
805 (8th Cir. 2001). There are two tests for determining when
equitable tolling is appropriate: (1) if petitioner was
diligently pursuing his rights and “extraordinary
circumstances” beyond his control stood in his way and
prevented timely filing, Holland, 560 U.S. at 649,
or (2) if the government's conduct “lulled”
the petitioner into inaction through reliance on that
conduct. U.S. v. Hernandez, 436 F.3d 851, 858 (8th
Cir. 2006). Equitable tolling is “an exceedingly narrow
window of relief.” Jihad, 267 F.3d at 805.
case, petitioner's averments do not establish grounds for
equitably tolling the period in which he could file a §
2254 petition challenging his 2001 convictions and sentences.
Therefore, to the extent petitioner can be understood to
challenge those 2001 convictions and sentences, the petition
is untimely and subject to dismissal as such.
can also be understood to claim entitlement to habeas relief
because the respondent refused to acknowledge a Missouri
Department of Corrections policy or procedure permitting
release under certain circumstances. However, this Court
lacks jurisdiction to grant habeas relief on this basis. To
obtain federal habeas relief, petitioner must demonstrate
that he was deprived of a right secured by the Constitution,
laws, or treaties of the United States. See Crump v.
Caspari, 116 F.3d 326, 327 (8th Cir. 1997). Violation of
a state law, or of a policy of a state agency such as the
Missouri Department of Corrections, does not meet this
definition. See Bagley v. Rogerson, 5 F.3d 325, 328
(8th Cir. 1993) (“violation of state law, without more,
does not state a claim under the federal Constitution or 42
U.S.C. § 1983.”). The same would be true if
petitioner had claimed violation of Missouri's parole
statutes, see Marshall v. Mitchell, 57 F.3d 671, 672
(8th Cir. 1995) (Missouri's parole statutes do not create
a liberty interest protected by the due process clause of the
Fourteenth Amendment), and petitioner's unsupported
statement that his present confinement violates federal law
does not confer jurisdiction over his petition. See
Johnson v. Rosemeyer, 117 F.3d 104, 110 (3rd Cir. 1997)
(“Errors of state law cannot be repackaged as federal
errors simply by citing the Due Process Clause.”).
Finally, even if petitioner had claimed violation of a
federally-protected right, he has not alleged, nor is it
apparent, that he presented the constitutional dimensions of
his claim to the state courts, or that he has no presently
available state remedies to pursue. See 28 U.S.C.
§ 2254(b)(1); O'Sullivan v. Boerckel, 526
U.S. 838, 842 (1999) (a petitioner must exhaust his state law
remedies before the federal court can grant relief on the
merits of his claims in a habeas petition).
considered whether to issue a certificate of appealability.
To do so, I must find a substantial showing of the denial of
a federal constitutional right. See Tiedeman v.
Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial
showing is a showing that issues are debatable among
reasonable jurists, a Court could resolve the issues
differently, or the issues deserve further proceedings.
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997)
(citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th
Cir. 1994)). Petitioner herein has made no such showing, and
I therefore decline to issue a certificate of appealability.
IT IS HEREBY ORDERED that petitioner
Flennard Smith's petition for writ of habeas corpus is
DISMISSED. A separate order of dismissal
will be entered herewith.
IS FURTHER ORDERED that no certificate of