Blair v. Bowersox

• Decision Date: 13 July 2012
• Docket Number: No. 4:09CV799 HEA (TIA),4:09CV799 HEA (TIA)
• Parties: GLEN BLAIR, Petitioner, v. MICHAEL BOWERSOX, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

GLEN BLAIR, Petitioner,

v.MICHAEL BOWERSOX, Respondent.

No. 4:09CV799 HEA (TIA)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: July 13, 2012

REPORT AND RECOMMENDATION

This matter is before the Court on Missouri state prisoner Glen Blair's pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The case was referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(c).

I. Procedural History

Petitioner is currently incarcerated at the South Central Correctional Center located in Licking, Missouri. On April 30, 2004, Petitioner was convicted by a jury in the Circuit Court of the City of St. Louis of four counts of statutory sodomy in the first degree, one count of child molestation in the first degree, and one count of sexual misconduct involving a child. (Legal File, Resp. Exh. A 78-84). The St. Louis City Circuit Court sentenced him on June 17, 2004, as a persistent offender to concurrent terms of twenty years imprisonment on each count of statutory sodomy, ten years imprisonment for child molestation in the first degree, and three years imprisonment for sexual misconduct involving a child. (Id. at 100-03). On November 1, 2005, the Missouri Court of Appeals affirmed Petitioner's conviction and sentence finding that Petitioner failed to properly preserve for appeal the issue of a violation of the Sixth Amendment confrontation right when the trial court admitted into evidence a videotape of the victim incriminating him inasmuch as he did not raise theissue until after trial in his motion for new trial. State v. Blair, 175 S.W.3d 197 (Mo. Ct. App. 2005); (Resp. Exh. E). Petitioner did not seek further review in the Missouri Supreme Court, and his time for doing so expired on November 16, 2005. See Missouri Rule 83.02. The Missouri Court of Appeals issued its mandate on November 23, 2005. (Resp. Exh. F).

On February 14, 2006, Petitioner filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence pursuant to Rule 29.15. (Resp. Exh. G at 4-21). Appointed counsel filed an Amended Motion to Vacate, Set Aside or Correct the Judgment pursuant to Rule 29.15 on May 30, 2006 raising two grounds for relief: trial counsel was ineffective for failing to present evidence refuting the state's assertion that the victim was a good girl and for failing to object to the admission of the victim's videotaped statement incriminating him. (Id. at 29-41). On July 3, 2007, the post-conviction motion court denied relief without an evidentiary hearing holding his claims to be without merit. (Id. at 54-60). On appeal, Petitioner raised one claim for relief, the ineffectiveness of trial counsel for failing to present evidence refuting the State's assertion that the victim was a "good girl." (Id. at H at 9). The Missouri Court of Appeals affirmed the denial of relief, Blair v. State, 255 S.W.3d 530 (Mo. Ct. App. 2008); (Resp. Exh. J), and issued its mandate on July 9, 2008. (Resp. Exh. K). Petitioner pursued no other action for review of his convictions and sentence.

On May 12, 2009, this Court received a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, accompanied by Petitioner's application to proceed in forma pauperis ("IFP"). The petition and application bear Petitioner's signature dated May 5, 2009. On June 4, 2009, Petitioner's application to proceed IFP was granted and the Court ordered the Clerk of the Court to send in the mail a copy of the form "Petition Under 28 U.S.C. Section 2254 for Writ of Habeas Corpus by a Person in State Custody" and further ordered Petitioner to complete and return the petition withinthirty days. On July 8, 2009, this Court received the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and the amended petition was filed that same date. The amended petition bears Petitioner's signature dated July 2, 2007. Respondent was thereafter ordered to show cause why the claims for relief as set out in Petitioner's amended petition should not be granted. In response, Respondent contends that the petition is untimely filed pursuant to 28 U.S.C. § 2244(d)(1) inasmuch the original federal habeas petition was not filed within the one-year limitations period set forth in 28 U.S.C. § 2244(d). See Payne v. Kemna, 441 F.3d 570, 572 (8th Cir. 2006) (the one-year period is tolled through the date a timely post-conviction appeal is concluded by the Missouri appellate court's issuance of a mandate). Respondent further counters that the grounds for relief in the amended petition are either procedurally barred or not cognizable in federal habeas proceedings.

A person in custody under a state court judgment has one year from the date upon which the judgment became final to apply for a writ of habeas corpus from a federal court. 28 U.S.C. § 2244(d)(1). The judgment is final upon "the conclusion of direct review or the expiration of the time for seeking such review." § 2244(d)(1)(A). The one-year statutory period is tolled during the time a properly filed application for State post-conviction relief is pending. § 2244(d)(2).

Petitioner was convicted on April 30, 2004, and he was sentenced as a persistent offender on June 17, 2004. The Missouri Court of Appeals affirmed the conviction and sentence on November 1, 2005. State v. Blair, 175 S.W.3d 197 (Mo. Ct. App. 2005). The mandate issued on November 23, 2005. Petitioner did not seek transfer to the Missouri Supreme Court and, thus, his conviction became final for purposes of § 2244(d)(1)(A) on the day the mandate issued. Riddle v. Kemna, 523 F.3d 850, 855 (8th Cir. 2008). In such circumstances, the federal habeas court does not include in the period provided by 28 U.S.C. § 2244(d)(1)(A) the ninety day period allowed for filing a petitionfor certiorari to the United States Supreme Court because the United States Supreme Court could not review the petitioner's direct appeal due to the absence of a decision by the state court of last resort, the Missouri Supreme Court. Id. at 855. Therefore, in these situations, "the statute of limitations in 28 U.S.C. § 2241(d)(1) [begins] the day after the direct-appeal mandate" is issued. Id. at 856; accord McMullan v. Roper, 599 F.3d 849, 852 (8th Cir. 2010) (when no petition for writ of certiorari was filed with the United States Supreme Court, the "state court judgment becomes final ... the day after the direct appeal mandate was issued by the Missouri Court of Appeals.").

Here, the Missouri Court of Appeals issued its direct-appeal mandate on November 23, 2005, and Petitioner did not request transfer to the Missouri Supreme Court or file a petition for writ of certiorari with the United States Supreme Court. The limitations period ran for 82 days until Petitioner filed a motion for post-conviction relief on February 14, 2006. Section 2242(d)(20 states that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). After the motion was denied, Petitioner appealed, without success. On July 9, 2008, the Missouri Court of Appeals issued the mandate following the appeal of the denial of post-conviction relief. Payne v. Kemna, 441 F.3d 570 (8th Cir. 2006). At that point, the running of the limitations period resumed.

To be timely, the instant habeas petition had to be filed 283 days later on April 18, 2009. The original petition was mailed on May 5, 2009 and was untimely filed on May 12, 2009. Petitioner filed an amended petition on July 8, 2009 as ordered by the Court wherein he raised two grounds for relief: (1) he was denied due process by the admission of a videotape statement of the victim incriminating him pursuant to Mo. Rev. Stat. § 491.0975; and (2) he was denied effective assistance of counsel bycounsel's failure to present evidence refuting the State's assertion that the victim was a "good girl."

The one-year statute of limitations set forth in § 2244(d) is subject to equitable tolling in appropriate cases. Holland v. Florida, __ U.S. _, 130 S.Ct. 2549, 2560 (2010).

Petitioner asserts that he is entitled to equitable tolling because when he filed the original petition, Petitioner requested the Court to toll the statute of limitations if the time period had lapsed for filing. In relevant part, Petitioner asserted that he had

not yet received a written confirmation of the court's decision; however, I was told three weeks ago by counsel that my Post-Conviction relief motion appeal was denied. I tried to find counsel to assist me in preparing this motion, however I was soon informed that my family did not have the funds available to hire an attorney. This short notice left me with only a few weeks to research, prepare and type this motion. I ask that this Honorable Court toll my time if in fact I am beyond my one-year limit. I have worked very hard to prepare this motion in a timely manner.

(Pet. at 18, ECF No. 1).

Petitioner contends that "extraordinary circumstances" made it impossible for him to timely file his petition, and thus equitable tolling is justified. "[E]quitable tolling is proper when 'extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time."¹ Paige v. United States, 171 F.3d 559, 561 (8th Cir. 1999); see Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) ("[e]quitable tolling is proper only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time."). The Eighth Circuit has noted that "[a]ny invocation of equity to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individualized hardship supplant the rules of clearly drafted statutes." Flanders v. Graves, 299 F.3d 974, 976 (8th Cir. 2002) (internal quotationsomitted)....