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Blanchard v. McSwain

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

March 28, 2019

BOYCE LAMARR BLANCHARD, Petitioner,
v.
ELLIS McSWAIN, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         Petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 [Doc. No.1]. Respondent filed a Response to the Court's Order to Show Cause Why Relief Should Not be Granted. Petitioner has filed his Reply to Response to Order to Show Cause. For the reasons set forth below, the Response to the Order to Show Cause Why Relief Should not be Granted is well taken and the petition will be denied. Since the filing of the Petition, Petitioner has been released on parole.

         Facts and Procedural Background

         The Missouri Court of Appeal summarized the relevant facts in its Opinion affirming the trial court. Respondent has set out that summary in his Response, which summary is incorporated herein.

         On May 17, 2011, Petitioner was convicted of two counts of felony possession of a controlled substance. (No. 0922-CR00725-01). On October 6, 2011, he was sentenced to two concurrent terms of imprisonment of seven years. (Id.). Petitioner has been released from prison and is currently on parole.

         On November 7, 2011, Petitioner appealed his conviction. (No. ED97564). The Missouri Court of Appeals affirmed on December 26, 2012. State v. Blanchard, 400 S.W.3d 316 (Mo.Ct.App. 2012). Petitioner's application to transfer his appeal to the Supreme Court of Missouri was filed on January 10, 2013, and denied on June 25, 2013. (No. SC93391). While Petitioner's initial appeal was pending, he filed a Petition for Writ of Habeas Corpus in the Supreme Court of Missouri, which was denied on August 8, 2012. (No. SC92668).

         On July 26, 2013, Petitioner filed a pro se motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15. (No. 1322-CC09060). Counsel entered an appearance for Petitioner on November 6, 2013 and filed an amended motion on February 4, 2014. (Id.).

         On December 4, 2013, while Petitioner's pro se motion for post-conviction relief was pending in state court, he filed a federal habeas petition, which was dismissed without prejudice for failing to exhaust administrative remedies.

         In an order dated February 18, 2014, the state motion court denied Petitioner's amended motion for post-conviction relief. (No. 1322-CC09060). On March 31, 2014, Petitioner filed an appeal of the state motion court's denial of his motion for post-conviction relief. The Missouri Appellate Court affirmed the denial of Petitioner's post-conviction relief on March 31, 2015.

         Standard of Review

          The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (“AEDPA”) applies to all petitions for habeas relief filed by state prisoners after the statute's effective date of April 24, 1996. When reviewing a claim that has been decided on the merits by a state court, AEDPA limits the scope of judicial review in a habeas proceeding as follows:

An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim -
(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).

         In construing AEDPA, the United States Supreme Court, in Wi ...


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