United States District Court, E.D. Missouri, Eastern Division
CARL S. GOLDBERG, Petitioner,
RICHARD JENNINGS, Respondent.
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter comes before the Court on its own motion. On July 10,
2019, the Court ordered petitioner to show cause why his
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 should not be dismissed for failure to exhaust
state remedies. (Docket No. 7). Petitioner was given thirty
days in which to respond. More than thirty days have elapsed,
and petitioner has failed to comply. Therefore, for the
reasons discussed below, petitioner's petition will be
dismissed without prejudice for failure to exhaust state
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 asserts that he received no return
response and that the “Clerk failed to respond.”
The Court was unable to find any record of this particular
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
(10th Cir., Monroe County). In the motion,
petitioner alleged that ineffective assistance of counsel
induced him to enter an involuntary and invalid guilty plea.
order filed May 29, 2019, the state circuit 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 circuit court
stated that petitioner's motion appeared untimely.
Nevertheless, the circuit 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 circuit court appointed counsel to
investigate petitioner's motion. An assistant public
defender entered her appearance on petitioner's behalf on
June 21, 2019. The circuit court held a case management
conference on July 12, 2019. The circuit court has also set
the matter for a hearing on November 14, 2019.
filed the instant petition for writ of habeas corpus on April
25, 2019, by placing it in the prison mailing
system. (Docket No. 1). He alleges that his
attorney provided ineffective assistance of counsel by
prompting him into an involuntary guilty plea.
10, 2019, the Court ordered petitioner to show cause why his
petition should not be dismissed for failure to exhaust state
remedies. (Docket No. 7). In doing so, the Court noted that
petitioner's motion to vacate, set aside or correct
sentence was still pending in the state circuit court.
Petitioner was given thirty days in which to file a response.
No. response has been received.
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 sentence in state court. An attorney has been
appointed to represent him and the matter is still pending.
The next hearing has been scheduled for November 14, 2019.
Clearly, petitioner has not yet exhausted his state remedies.
His state-court motion has not been ruled upon, meaning that
the state has not been given an “opportunity to pass
upon and correct alleged violations of [petitioner's]
federal rights.” Furthermore, if his federal petition
were to proceed, it would disrupt ongoing state judicial
proceedings. For these reasons, the Court must dismiss the
instant petition for failure to exhaust state remedies.
Court has considered whether or not to issue a certificate of
appealability. In order to issue such a certificate, the
Court must find a substantial showing of the denial of a
federal right. See Tiedeman v. Benson, 122 F.3d 518,
522 (8th Cir. 1997). “A substantial showing
is a showing that issues are debatable among reasonable
jurists, a court could resolve the issues differently, or the
issues deserve further proceedings.” Cox v.
Norris, 133 ...