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Ford v. Jennings

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

June 4, 2019

MICHAEL FORD, Petitioner,
v.
RICHARD JENNINGS, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on petitioner Michael Ford's response to the Court's March 12, 2019 order to show cause. (Docket No. 4). The Court had ordered petitioner to show cause why his 28 U.S.C. § 2254 petition for writ of habeas corpus should not be dismissed as time-barred. Having carefully reviewed petitioner's response, and for the reasons discussed below, the Court must dismiss this action as time-barred pursuant to 28 U.S.C. § 2244.

         Background

         On October 5, 2011, petitioner was charged with first degree murder and armed criminal action. State of Missouri v. Ford, No. 1122-CR05948 (22nd Judicial Cir., St. Louis City).[1] He was convicted on both counts on July 11, 2013, following a jury trial. On September 20, 2013, petitioner was sentenced to life without parole. He filed his notice of appeal that same day.

         The Missouri Court of Appeals affirmed the circuit court on February 10, 2015. State of Missouri v. Ford, 454 S.W.3d 407 (Mo. App. 2015). Petitioner did not file a motion for rehearing or a motion to transfer to the Missouri Supreme Court.

         Petitioner filed a motion to vacate pursuant to Missouri Supreme Court Rule 29.15 on May 11, 2015. State of Missouri v. Ford, No. 1522-CC01008 (22nd Judicial Cir., St. Louis City). The motion was denied on January 12, 2016, and petitioner filed a notice of appeal on February 22, 2016. On January 31, 2017, the Missouri Court of Appeals reversed and remanded with instructions to the circuit court to complete the record for purposes of determining the timeliness of petitioner's amended motion to vacate. State of Missouri v. Ford, 510 S.W.3d 360 (Mo. App. 2017).

         Upon rehearing on April 27, 2017, the circuit court again denied petitioner's motion to vacate. State of Missouri v. Ford, No. 1522-CC01008 (22nd Judicial Cir., St. Louis City). Petitioner filed a notice of appeal on June 6, 2017. The Missouri Court of Appeals affirmed the circuit court on March 6, 2018. State of Missouri v. Ford, 540 S.W.3d 889 (Mo. App. 2018). The Court of Appeals issued its mandate on March 28, 2018.

         Petitioner placed the instant petition in the prison mailing system on February 12, 2019. (Docket No. 1 at 14).[2] On March 12, 2019, the Court ordered petitioner to show cause why his petition should not be dismissed as time-barred. The Court noted that from the time petitioner's judgment became final, on February 25, 2015, to the time that petitioner placed his petition in the prison mail system, on February 12, 2019, a total of 396 days had elapsed, excluding the period during which petitioner's state post-conviction motion was pending. Petitioner was directed to show cause within thirty days as to why his petition should not be dismissed as untimely. He filed his response on April 5, 2019, by placing it in the prison mailing system. (Docket No. 4).

         Petitioner's Response

         Petitioner objects to the Court's calculation as to when the one-year statute of limitations began running. (Docket No. 4 at 3). In its show cause order, the Court stated that petitioner's judgment became final on direct review on February 25, 2015, fifteen days after the Missouri Court of Appeals affirmed his conviction. The Court made this determination because petitioner did not file a motion to transfer to the Missouri Supreme Court. Using February 25, 2015 as the date the statute of limitations began running, the Court calculated that a total of 75 days elapsed between February 25 and May 11, 2015, the date on which petitioner filed his state post-conviction motion.

         Petitioner disagrees with the Court's conclusion that his judgment became final - and the statute of limitations began running - on February 25, 2015. To the contrary, he asserts that “once his conviction was affirmed on February 10, 2015, after direct appeal, the law of Missouri does not require prisoners to pursue discretionary review by petitioning for transfer to the Missouri Supreme Court.” (Docket No. 4 at 3-4). He argues that because petitioning for transfer to the Missouri Supreme Court is discretionary, Missouri is a “two tier state” where the Court of Appeals is “the state court of last resort.” (Docket No. 4 at 4). As such, petitioner believes that “the conclusion of the direct review process includes the 90-day period for seeking certiorari in the [United States] Supreme Court.” In other words, despite not filing a petition for writ of certiorari, his appeal is considered pending until the time for filing such writ has expired. Therefore, petitioner contends that his judgment was not final until 90 days after February 10, 2015, meaning that his petition was not due until April 12, 2019. Because petitioner placed his petition in the prison mailing system on February 12, 2019, he states that his action is not time-barred.

         Discussion

         The Court previously ordered petitioner to show cause why his 28 U.S.C. § 2254 petition should not be dismissed as time-barred pursuant to 28 U.S.C. § 2244. Petitioner has filed his response. Having carefully reviewed the response, and for the reasons discussed below, the Court must dismiss petitioner's petition as time-barred.

         A. Statute ...


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