United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner John Scott Thomas,
III's Pro Se Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State
John Scott Thomas, III (“Petitioner”) pled guilty
to eight counts of first-degree statutory sodomy and one
count of first-degree statutory rape on November 27, 2012.
The circuit court sentenced Petitioner to thirty years
imprisonment, and Petitioner did not file a direct appeal of
his sentence. Petitioner filed a timely motion for
post-conviction relief pursuant to Missouri Supreme Court
Rule 24.035. His motion was denied, and Petitioner did not
appeal the state court's denial of this motion. On
February 16, 2017, Petitioner filed the instant petition for
writ of habeas corpus under 28 U.S.C. § 2254. On March
1, 2017, this court issued an Order to Show Cause as to why
his petition should not be dismissed as time-barred .
state prisoner who believes that he is incarcerated in
violation of the Constitution or laws of the United States
may file a petition for writ of habeas corpus in federal
court pursuant to 28 U.S.C. § 2254.” Osborne
v. Purkett, 411 F.3d 911, 914 (8th Cir. 2005). In order
for a federal court to grant an application for a writ of
habeas corpus brought by a person in custody by order of a
state court, the petitioner must show that the state court
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). A determination of a factual
issue made by a state court is presumed to be correct unless
the petitioner successfully rebuts the presumption of
correctness by clear and convincing evidence. Id. at
court's decision is “contrary to” clearly
established Supreme Court precedent “if the state court
either ‘applies a rule that contradicts the governing
law set forth in [Supreme Court] cases' or
‘confronts a set of facts that are materially
indistinguishable from a decision of [the] Court and
nevertheless arrives at a result different from [the]
precedent.'” Penry v. Johnson, 532 U.S.
782, 792 (2001) (citing Williams v. Taylor, 529 U.S.
362, 405-406 (2000)). An unreasonable application of clearly
established Supreme Court precedent is found where the state
court identifies the correct governing legal principle but
unreasonably applies that principle to the facts of the case.
Ryan v. Clark, 387 F.3d 785, 790 (8th Cir. 2004).
Finally, a state court decision may be considered an
unreasonable determination of the facts “only if it is
shown that the state court's presumptively correct
factual findings do not enjoy support in the record.”
asserts four claims in his petition for writ of habeas
corpus. First, he alleges ineffective assistance of counsel
for failing to investigate coercion used by law enforcement.
Second, Petitioner alleges ineffective assistance of counsel
for failing to protect his constitutional rights. Third,
Petitioner alleges ineffective assistance of counsel for
failing to investigate whether his victim's mother had a
sexually transmitted disease. Finally, Petitioner asserts
plea hearing counsel conspired to coerce him to plead guilty
and sign a post-conviction waiver of rights.
Court assessed the timeliness of Petitioner's habeas
petition in the Order to Show Cause and found 915 days
elapsed between the date the state court judgment in the
state post-conviction case became final and the filing of the
instant petition on February 16, 2017 . The Anti-Terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”)
provides a one-year statute of limitations for writs of
habeas corpus filed under 28 U.S.C. § 2254, which begins
running on the date judgment becomes final. Williams v.
Bruton, 299 F.3d 981, 982 (8th Cir. 2002). The
AEDPA's one-year limitation period is tolled, however,
while “a properly filed application for State
post-conviction or other collateral review ... is
pending.” 28 U.S.C. § 2254(d)(2).
Petitioner filed a motion for post-conviction relief on
August 13, 2013, which the circuit court denied on July 7,
2014. This Court concluded, when it issued the show cause
order, that tolling is not warranted for the 180 days between
the date Petitioner's sentence became final, February 15,
2013, and August 13, 2013, the date Petitioner filed his
post-conviction relief in state court. See Bear v.
Fayram, 650 F.3d 1120, 1125 (8th Cir. 2011) (holding
that the limitations period is not tolled prior to the filing
of the state application for relief). This Court found the
limitations period was tolled for 368 days, beginning August
13, 2013 and ending August 16, 2014 (the time during which he
could have appealed the court's adverse ruling). See
Williams, 299 F.3d 981 at 981-82 (noting the limitations
period is tolled during time that state prisoner could have
appealed lower court's adverse ruling); Mo. Sup. Ct. R.
81.04 (petitioner has 10 days to appeal after dismissal of
post-conviction relief becomes final); Mo. Sup. Ct. R. 81.05
(judgment becomes final 30 days after its entry, unless an
authorized after-trial motion is filed). No appeal of the
denial was filed, and Petitioner did not file the instant