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Clerk v. Cassady

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

March 15, 2019

CEDRIC B. CLERK, JR. Petitioner,
v.
JAY CASSADY, Respondent.

          REPORT AND RECOMMENDATION

          DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court upon the petition of Missouri state prisoner Cedric B. Clerk, Jr., for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to the undersigned Magistrate Judge under 28 U.S.C. § 636(b) for recommended determinations on dispositive matters and for rulings on non-dispositive matters.

         Petitioner's grounds for relief are based upon a new retroactive rule of constitutional law that was decided by the United States Supreme Court in Miller v. Alabama and Montgomery v. Louisiana: a mandatory sentence of life imprisonment without the possibility of parole violates the Eighth Amendment of the United States Constitution when the offender was a juvenile at the time of the offense. See Montgomery v. Louisiana, 136 S.Ct. 718 (2016); Miller v. Alabama, 132 S.Ct. 2455 (2012). The undersigned previously ordered briefing on the issue of whether Missouri's enactment of Senate Bill 590 (“SB 590”), which purported to implement Miller/Montgomery-compliant sentencing procedures into Missouri state law, had now mooted petitioner's habeas claim.

         The undersigned has carefully considered the parties' briefs on this issue and reviewed the parties' prior briefs on the merits. For the following reasons, the undersigned recommends the Court deny the petitions for a writ of habeas corpus and dismiss the case without prejudice to petitioner returning to this Court if he is denied relief in the Missouri courts.

         I. BACKGROUND

         On October 15, 1999, petitioner was found guilty by a jury in the Circuit Court of the City of St. Louis of one count of murder in the first degree and one count of armed criminal action, crimes he committed when he was fifteen years old. On December 9, 1999, he was mandatorily sentenced to life imprisonment without the possibility of probation or parole. (Docs. 1-3).

         Petitioner appealed the trial court's judgment. He argued "the trial court erred in allowing evidence of his certification hearing and evidence of his juvenile record [and] that the trial court erred in denying [post trial relief] because the evidence was insufficient as a matter of law to prove the deliberation element of first degree murder." See State of Missouri v. Clerk, 34 S.W.3d 242 (Mo.Ct.App. 2000) (on December 5, 2000, affirming the judgment without reported opinion).

         On June 25, 2012, the Supreme Court of the United States held in Miller v. Alabama that a mandatory sentence of life imprisonment without the possibility of parole for a juvenile violates the Eighth Amendment. 132 S.Ct. at 2460.

         On June 14, 2013, petitioner filed a petition for a writ of habeas corpus with the Missouri Supreme Court, pursuant to Mo. S.Ct. R. 91 and Mo. Rev. Stat. §§ 532.010 et seq., arguing that under Miller and Missouri law he is entitled to have his convictions vacated and to be resentenced under a charge of second-degree murder, because there is no longer any lawful sentence for a juvenile for a charge of first-degree murder in Missouri. (Doc. 4). In that petition, Clerk alleged the following grounds for relief:

(1) "Missouri's Sentencing Scheme Is Unconstitutional under Miller v. Alabama, " which is retroactively applicable to him (id. at 11). The habeas corpus relief he sought included a new sentencing hearing for the murder conviction under Miller "in which he can provide evidence of both the mitigating factors of youth and his background," (id. at 23) (citing Miller, 132 S.Ct. at 2475), and resentencing on his armed criminal action conviction for the consideration of mitigation evidence, because of this conviction's legal relationship to the murder conviction. (Id. at 24).
(2) Petitioner's convictions should be vacated because of his post-sentencing mental impairment diagnoses and he should be retried with the ability to raise his mental condition in defense. (Id. at 26).
(3) Petitioner is entitled to transfer to a mental health facility under the U.S. Constitution's Eighth Amendment prohibition of cruel and unusual punishment, and under Article I, § 21 of the Missouri Constitution. (Id. at 35).

         On January 27, 2016, the Supreme Court of the United States decided Montgomery v. Louisiana, holding that the principle articulated in Miller v. Alabama is to be applied retroactively. Montgomery, 136 S.Ct. 718, 736 (2016).

         On March 15, 2016, without any response from the state or additional briefing, the Missouri Supreme Court sustained petitioner's state habeas petition in part, ordering him to be eligible for parole after serving 25 years' imprisonment. (Docs. 1-5.)

         On March 24, 2016, petitioner filed his original federal habeas corpus petition in this Court under 28 U.S.C. § 2254 in order to preserve his access to habeas relief in this Court. (Doc. 4).

         On March 30, 2016, petitioner filed a motion for rehearing with the Supreme Court of Missouri under ...


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