United States District Court, E.D. Missouri, Eastern Division
CARL S. GOLDBERG, Petitioner,
RICHARD JENNINGS, Respondent.
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on petitioner Carl S.
Goldberg's motion for leave to proceed in forma pauperis
[Doc. 2] and petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. Having reviewed the motion and the
petition, and for the reasons discussed below, the Court
grants petitioner's in forma pauperis status and orders
petitioner to show cause why this action should not be
dismissed for failure to exhaust available state remedies.
is an inmate at the Potosi Correctional Center in Mineral
Point, Missouri. On February 28, 2018, he pled guilty to
second-degree felony murder. State of Missouri v.
Goldberg, No. 16MN-CR00070 (10th Cir., Monroe
County). He was sentenced to serve a term of life
imprisonment in the Missouri Department of Corrections on
June 7, 2018. Petitioner did not file a direct appeal.
petition, petitioner states that he filed a “Form #40
Motion” with the Circuit Court of Ralls County on or
about August 23, 2018. He states that he received no return
response and that the “Clerk failed to respond.”
A search of Case. net, Missouri's online case management
system, failed to disclose any filing of a Form 40 for
petitioner, on the stated date.
on April 10, 2019, petitioner did file a motion to vacate,
set aside or correct the judgment or sentence in state court.
Goldberg v. State of Missouri, No. 19MN-CV00074
(10thCir., Monroe County). In the motion,
petitioner alleges that ineffective assistance of counsel
induced him to enter an involuntary and invalid guilty plea.
order filed May 29, 2019, the state court noted that
petitioner was sentenced on June 7, 2018 and did not file a
direct appeal. Pursuant to Missouri Supreme Court Rule
24.035, motions to vacate, set aside or correct must be filed
within 180 days of the sentence. Thus, the state court
concluded that petitioner's motion appeared untimely.
Nevertheless, the state court acknowledged petitioner's
claim that he had mistakenly filed his motion in Ralls County
on August 23, 2018. Though the Ralls County Clerk stated no
such motion was filed, the state court appointed counsel to
investigate petitioner's motion. The last docket entry
for this case occurred on June 21, 2019, and indicates that
an attorney has entered her appearance on petitioner's
filed the instant petition for writ of habeas corpus on April
25, 2019, by placing it in the prison mailing
system. He alleges that his attorney provided
ineffective assistance of counsel by prompting him into an
involuntary guilty plea.
petitioner in state custody seeking relief pursuant to 28
U.S.C. § 2254 must first exhaust available state
remedies before pursuing federal habeas relief. Wayne v.
Missouri Bd. of Probation & Parole, 83 F.3d 994, 996
(8th Cir. 1996). See also White v.
Wyrick, 651 F.2d 597, 598 (8th Cir. 1981)
(stating that “[i]t is elementary that a § 2254
petitioner must exhaust available state remedies before he is
entitled to relief in federal court”). This provides
the state an “opportunity to pass upon and correct
alleged violations of its prisoners' federal
rights.” Baldwin v. Reese, 541 U.S. 27, 29
(2004). The exhaustion requirement also prevents disruption
of state judicial proceedings. Rose v. Lundy, 455
U.S. 509, 517 (1982).
April 10, 2019, prior to the filing of his federal habeas
petition, petitioner filed a motion to set aside, vacate or
correct in state court. Petitioner has an appointed counsel
and the motion is still pending. Thus, it appears that he has
not exhausted his state remedies. As such, petitioner will be
ordered to show cause why his § 2254 petition should not
be dismissed for failure to exhaust. He will be given thirty
days from the date of this order in which to file his
IT IS HEREBY ORDERED that petitioner's
motion for leave to proceed in forma pauperis (Docket No. 2)
IS FURTHER ORDERED that petitioner shall show cause
within thirty (30) days of the date of this
order as to why the Court should not dismiss the instant
petition for writ of habeas corpus for failure to exhaust
IS FURTHER ORDERED that if petitioner fails to
comply with this order, the Court will dismiss his petition