United States District Court, E.D. Missouri, Eastern Division
CEDRIC B. CLERK, JR. Petitioner,
JAY CASSADY, Respondent.
REPORT AND RECOMMENDATION
D. NOCE UNITED STATES MAGISTRATE JUDGE.
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.
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
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
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.
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
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.
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
(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).
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,
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.)
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.
March 30, 2016, petitioner filed a motion for rehearing with
the Supreme Court of Missouri under ...