Siela v. Johnson

• Decision Date: 22 May 2012
• Docket Number: Case No. 12-0204-CV-W-BP-P
• Citation: Siela v. Johnson, Case No. 12-0204-CV-W-BP-P (W.D. Mo. May 22, 2012)
• Parties: TIMOTHY EDWARD SIELA, Petitioner, v. JEAN ANN JOHNSON, Respondent.
• Court: U.S. District Court — Western District of Missouri

TIMOTHY EDWARD SIELA, Petitioner,

v.JEAN ANN JOHNSON, Respondent.

Case No. 12-0204-CV-W-BP-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Date: May 22, 2012

OPINION AND ORDER DENYING WRIT OF HABEAS CORPUS AND DENYING A

CERTIFICATE OF APPEALABILITY

Petitioner, a convicted state prisoner currently confined at the Western Missouri Correctional Center in Cameron, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.Petitioner challenges his 2006 conviction and sentence for first degree assault, which was entered in the Circuit Court of Clinton County, Missouri.Petitioner raises one general ground for relief - that his counsel was ineffective for various reasons, causing him to enter an involuntary and unknowing guilty plea.Respondent contends that the ground is untimely, partially procedurally defaulted, and without merit.

FACTUAL BACKGROUND

In affirming the motion court's denial of petitioner's 24.035 motion, the Missouri Court of Appeals, Western District, set forth the following facts:

On the night of June 11, 2005, Siela was at a bar in Gower drinking beer.While at the bar, he saw one of his former employees, Tina.Tina showed him marks where she had slit her wrists because of her abusive relationship with her boyfriend, Brian.Brian and his friend, Mark Sterling, were also at the bar at the time.Siela approached Brian and Sterling and began yelling at Brian.An altercation, during which Sterling repeatedly kicked and hit Siela, ensued.

Eventually Siela got up and left the bar.He walked from the bar down thestreet to his apartment, which was approximately 150 feet away.While at his apartment, he grabbed a butcher knife.He then walked back to the bar and stabbed Sterling in the lower back.The knife went deep into Sterling's abdominal region.After the stabbing, the police found Siela hiding in a crawl space between the first and second floor of his apartment building.Siela gave a written statement to the police describing what he had done.The stabbing caused Sterling to bleed profusely and required extensive surgery and an extended hospital stay.A year and a half after the stabbing, Sterling continued to suffer from pain and the loss of nerve sensation in his side.

The State charged Siela with the class A felony of assault in the first degree and armed criminal action.In exchange for Siela's pleading guilty, the State agreed to dismiss the armed criminal action charge and lower the assault charge to a class B felony.Siela then pleaded guilty to the class B felony of assault in the first degree.The court sentenced him to twelve years in prison.

Respondent's Exhibit D, pp. 1-2(footnote omitted).

Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record.Marshall v. Lonberger, 459 U.S. 422, 432(1983).Credibility determinations are left for the state court to decide.Graham v. Solem, 728 F.2d 1533, 1540(8th Cir. en banc), cert. denied, 469 U.S. 842(1984).It is petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous.28 U.S.C. § 2254 (e)(1).¹Because the state court's findings of fact have fair support in the record and because petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.

STATUTE OF LIMITATIONS

"A 1-year period of limitation shall apply to an application for a writ of habeas corpus bya person in custody pursuant to the judgment of a State court.The limitation period shall run from . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[.]"28 U.S.C. § 2244(d)(1)(A).28 U.S.C. § 2244(d)(2) provides that the time during which petitioner had a properly filed state collateral review pending shall not be counted toward any period of limitation under Section 2244(d).

Petitioner was sentenced on December 20, 2006, and did not file an appeal, making his judgment final10 days later on January 2, 2007².See Mo. Sup. Ct. R. 30.01(a), 81.04(a).On May 29, 2007, 147 days later, petitioner filed a timely motion for post-conviction relief pursuant to Mo. Sup. Ct. R. 24.035.Respondents' Exhibit A, p. 43.The one-year statute of limitations was tolled from May 29, 2007, until February, 9, 2011, when the Missouri Court of Appeals issued its mandate in the post-conviction appeal.Respondent's Exhibit E, p. 2.The one-year statute of limitations in Section 2244(d) expired 218 days later on September 15, 2011.This petition, signed on February 5, 2012, was 143 days out of time.

Petitioner contends that the statute of limitations was tolled during the 180 day period that he had to file his post-conviction petition after his judgment became final.Doc. No. 9, p. 1.Section 2244(d)(1)(A) states that the "limitation period shall run from . . . the date on which the judgment became final[,]" and Section 2244(d)(2) states that the limitation period tolls only when a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending[.]"(emphasis added).The United States Court of Appeals for the Eighth Circuit repeatedly has held that the period between the date the state court judgment becamefinal and the date that an application for state post-conviction relief is filed counts against the one-year statute of limitations.See, e.g., Bear v. Fayram, 650 F. 3d 1120, 1125(8th Cir.2011);Boston v. Weber, 525 F. 3d 622, 625-26(8th Cir.2008);Painter v. Iowa, 247 F. 3d 1255, 1256(8th Cir.2001).Thus, tolling is not warranted for the approximately 147 days between the date that petitioner's sentence became final on January 2, 2007, and the filing of petitioner's Rule 24.035 motion on May 29, 2007.

Furthermore, petitioner argues that the statute of limitations was tolled from February 9, 2011, when the Missouri Court of Appeals issued its mandate in petitioner's post-conviction appeal, to May 9, 2011, when the deadline to appeal to the United States Supreme Court expired.Contrary to petitioner's assertions, the one-year statute of limitations is not tolled while a petition for certiorari to the United States Supreme Court seeking review of denial of state post-conviction relief is pending.Lawrence v. Florida, 549 U.S. 327, 332-33(2007).Furthermore, had the statute of limitations been tolled during this time period, petitioner would have extended his deadline only by 89 days, which still would make this petition 54 days out of time.

PROCEDURAL DEFAULT

Respondent also argues that petitioner procedurally defaulted all of his claims against the involuntariness of his guilty plea except for the claim that petitioner's guilty plea was involuntary due to the lack of an adequate factual basis.Doc. No. 6, p. 7.

"A habeas petitioner is required to pursue all available avenues of relief in the state courts before the federal courts will consider a claim."Sloan v. Delo, 54 F.3d 1371, 1381(8th Cir.1995), cert. denied, 516 U.S. 1056(1996)."If a petitioner fails to exhaust state remedies and the court to which he should have presented his claim would now find it procedurally barred, there is aprocedural default."Id.Petitioner procedurally defaulted his claims of ineffective assistance of counsel by failing to include them in his amended post-conviction motion or on appeal from the denial thereof.Sweet v. Delo, 125 F.3d 1144, 1149(8th Cir.1997)(recognizing that failure to present claims in the Missouri courts at any stage of direct appeal or post-conviction proceedings is a procedural default), cert. denied, 523 U.S. 1010(1998).A federal court may not review procedurally defaulted claims "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."Coleman v. Thompson, 501 U.S. 722, 750(1991).

In his reply, petitioner does not address respondent's procedural default arguments and merely restates his claims.Doc. No. 9.Because petitioner fails to present any explanation for why these claims were not pursued on appeal from the denial of his Rule 24.035 motion, petitioner fails to demonstrate cause for his procedural default.³Petitioner also has failed to show that a fundamental miscarriage of justice will result if his defaulted claims are not considered.SeeAbdi v. Hatch, 450 F.3d 334, 338(8th Cir.2006)(petitioner must present new evidence that affirmatively demonstrates that he is actually innocent of the crime for which he was convicted in order to fit within the fundamental miscarriage of justice exception), cert. denied, 549 U.S. 1036(2006).As a result, all of petitioner's claims, except for a claim that there was an insufficient factual basis for his plea, are procedurally defaulted and will be denied.

GROUND FOR RELIEF

In petitioner's sole remaining ground for relief, petitioner claims that there was an insufficient factual basis for his guilty plea.Specifically, petitioner argues that his description of the events "indicated that he was not aware of the nature of his conduct or attendant circumstances."Doc. No. 9, p. 2.Respondent contends that petitioner's ground for relief is without merit.Doc. No. 6, pp. 13-17.The Missouri Court of Appeals, Western District, denied this ground as follows:

. . . . Here, the circuit court denied Siela's motion without an evidentiary hearing on the basis that the record refuted his claim.

Siela contends that the circuit court clearly erred in denying his claim on this basis because the record did not establish the existence of a factual basis for his guilty plea.The circuit court cannot enter

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