United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER FOR PETITIONER TO SHOW
STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE.
matter is before the Court upon petitioner Peter Socha's
petition for writ of habeas corpus, filed pursuant to 28
U.S.C. § 2254. Because the petition appears to be
time-barred, the Court will order petitioner to show cause
why it should not be dismissed.
is presently incarcerated at the Moberly Correctional Center.
On February 18, 2016, he entered an Alford plea in the 12th
Judicial Circuit Court of Warren County, Missouri to multiple
counts of second-degree statutory sodomy and second-degree
statutory rape, and one count of supplying liquor to a minor.
State v. Peter Socha, No. 14BB-CR00714-01 (12th Jud.
Cir. 2016). On March 25, 2016 he was sentenced to an
aggregate term of imprisonment of 21 years. He did not seek
23, 2016, petitioner filed a motion for post-conviction
relief. Peter Socha v. State, No. 16BB-CC00037 (12th
Jud. Cir. 2016). The motion was denied, and petitioner
appealed. The Missouri Court of Appeals for the Eastern
District of Missouri affirmed the motion court's
decision, and issued its mandate on June 7, 2018. Peter
Socha v. State, No. ED105136 (Mo.Ct.App. 2018).
signed the instant petition on July 25, 2019 and it was
docketed in this Court on July 30, 2019. Applying the prison
mailbox rule, Nichols v. Bowersox, 172 F.3d 1068,
1077 (8th Cir. 1999), abrogated on other grounds by
Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008), and
giving petitioner the benefit of the doubt, Beery v.
Ault, 312 F.3d 948, 950 (8th Cir. 2002), the Court
determines the instant petition to have been filed on July
25, 2019, the date petitioner avers he signed and mailed it.
Under 28 U.S.C. § 2244(d):
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
Missouri criminal cases, a judgment becomes final when
sentence is imposed, State v. Larson, 79 S.W.3d 891,
893 (Mo. 2002) (en banc), and a notice of appeal must be
filed not later than ten days thereafter. Mo. Sup. Ct. R.
81.04 (notice of appeal must be filed not later than ten days
after the judgment appealed from becomes final). As such,
petitioner had ten days from March 25, 2016, the date
sentence was imposed, to seek direct review of his sentence.
Because petitioner did not seek direct review, judgment
became final for purposes of the federal habeas statute on
April 4, 2016, the date upon which the time for seeking such
review expired. 28 U.S.C. § 2244(d)(1)(A). Accordingly,
the one-year limitation period began to run on that date.
However, petitioner did not file the instant petition until
July 25, 2019, more than three years thereafter.
28 U.S.C. § 2244(d)(2), the one-year limitation period
for filing a federal habeas petition is tolled while “a
properly filed application for State post-conviction or other
collateral review ... is pending.” Williams v.
Bruton, 299 F.3d 981, 982 (8th Cir. 2002). The pendency
of post-conviction review includes the time between the
motion court's denial of post-conviction relief and the
filing of an appeal from the denial, Beery v. Ault,
312 F.3d 948, 950 (8th Cir. 2002); and the time during the
appeal process through and including the date upon which the
court of appeals issues its mandate. Payne v. Kemna,
441 F.3d 570, 572 (8th Cir. 2006). The ninety days within
which to file a petition for writ of certiorari to the United
States Supreme Court after the denial of post-conviction
relief is not tolled. Lawrence v. Florida, 549 U.S.
327 (2007); Jihad v. Hvass, 267 F.3d 803, 805 (8th
Cir. 2001). In this case, the one-year limitations period was
tolled for 745 days, beginning on May 23, 2016 (the date
petitioner filed a motion for post-conviction relief) until
June 7, 2018 (the date the Missouri Court of Appeals issued
its mandate after affirming the motion court's decision).
Petitioner filed the instant petition 413 days after the
conclusion of his state post-conviction proceedings.
time between the date a judgment becomes final and the date
an application for state collateral relief is filed counts
against the one-year limitation period. Bear v.
Fayram, 650 F.3d 1120, 1125 (8th Cir. 2011). Therefore,
tolling is not warranted for the 49 days between April 4,
2016 (the date judgment became final) and May 23, 2016 (the
date petitioner filed his motion for post-conviction relief).
Totaling this 49-day period with the 413-day period that
elapsed after the conclusion of collateral review, the sum of
462 days elapsed prior to the filing of the instant petition.
It therefore appears the petition is time-barred, and the
Court will order petitioner to show cause why it ...