White v. Lewis

• Decision Date: 21 January 2021
• Docket Number: No. 1:20-CV-65 SPM,1:20-CV-65 SPM
• Parties: RONALD WHITE, Petitioner, v. JASON LEWIS, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

RONALD WHITE, Petitioner, v. JASON LEWIS, Respondent.

No. 1:20-CV-65 SPM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION

January 21, 2021

MEMORANDUM AND ORDER

This matter is before the Court on petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 2, 2020, the Court ordered petitioner to show cause why this action should not be dismissed as time-barred. Petitioner filed a response to the Order to Show Cause on April 16, 2020. After review of the response filed by petitioner, the Court will dismiss this action as time-barred and, alternatively, petitioner's application for writ of habeas corpus is denied on the record.

Background

On August 27, 2015, a jury found petitioner guilty of domestic assault in the first degree, domestic assault in the third degree and armed criminal action. See State v. White, No. 1422-CR04119-01 (22^nd Judicial Circuit, St. Louis City Court). On October 15, 2015, the Court sentenced petitioner to twenty years' imprisonment.

Petitioner filed an immediate appeal of his conviction and sentence, but his appeal was dismissed by the Eastern District Court of Appeals for failure to comply with a court order on August 10, 2016. See State v. White, No. ED103585 (Mo.Ct.App. 2016).

Petitioner filed a post-conviction motion to vacate his sentence on November 18, 2016. See White v. State, No. 1622-CC11389 (22^nd Judicial Circuit, St. Louis City Court). The motion was denied May 17, 2018. Id. Unfortunately, there is no indication that petitioner appealed the denial of his motion to vacate. However, movant did file two petitions for writ of habeas corpus relating to his 2015 conviction.

On February 28, 2019, petitioner filed a petition for writ of habeas corpus, pursuant to Mo.Sup.Ct.R.91 in the Mississippi County Circuit Court. See White v. State, No. 19MI-CV00129 (33^rd Judicial Circuit, Mississippi Circuit Court). His petition was denied after a full briefing on July 10, 2019. Id.

On January 28, 2020, petitioner filed a petition for writ of habeas corpus, pursuant to Mo.Sup.Ct.R.91 in the Mississippi County Circuit Court. See White v. State, No. 20MI-CV00065 (33^rd Judicial Circuit, Mississippi Circuit Court). His petition was summarily denied on that same date.

Petitioner filed the instant application for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 petition on March 20, 2020, seeking to challenge his 2015 conviction in St. Louis City.

Discussion

A. Timeliness

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.

(2) The 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.

Pursuant to 28 U.S.C. § 2244(d), a petitioner has one year from the date his judgment of conviction becomes final within which to file a petition for writ of habeas corpus. Where, as here, a Missouri petitioner does not seek transfer to the Missouri Supreme Court after direct appeal, his judgment becomes final upon expiration of the time within which to seek such discretionary review, that is, fifteen days after the court of appeals issues its opinion. Gonzalez v. Thaler, 565 U.S. 134, 132 S. Ct. 641 (2012); Mo. S. Ct. R. 83.02.

Accordingly, petitioner's judgment of conviction became final on August 25, 2016, fifteen (15) days after the Missouri Court of Appeals affirmed his conviction on direct appeal. The one-year limitations period was tolled, however, during the pendency of petitioner's post-conviction proceedings, that is, from November 18, 2016, through May 17, 2018. See Paynev. Kemna, 441 F.3d 570, 572 (8th Cir. 2006) (post-conviction relief proceedings final on issuance of the mandate).

As noted above, petitioner failed to file an appeal of his post-conviction motion. Therefore, between the time his post-conviction motion to vacate his sentence was denied on May 17, 2018, and when he filed his first Rule 91 habeas motion on February 28, 2019, two hundred-eighty-seven (287) days elapsed. His limitations period was tolled during the filing of his Rule 91 habeas petition. See Poison v. Bowersox, 595 F.3d 873 (8th Cir. 2010) (properly-filed state habeas applications qualify as "other collateral review" under 28 U.S.C. Section 2244(d)(2)).

However, petitioner's state habeas petition was denied on July 10, 2019, and he did not file his second Rule 91 habeas until January 28, 2020. By this time, four-hundred-eighty-nine (489) days had passed, and petitioner's second Rule 91 could not serve to toll the limitations period. See Curtiss v. Mount Pleasant Correctional Facility, 338 F.3d 851, 853 (8th Cir. 2003) (in order for an application to toll the one-year limitations period, it must be filed prior to its expiration).

The instant petition, filed on March 20, 2020, was filed more than a year after petitioner's state court judgment of conviction became final. As a result, the Court Ordered petitioner to show cause why the petition should not be dismissed as time-barred. See Day v. McDonough, 547 U.S. 198, 209 (2006) (district court must give notice to petitioner before sua sponte dismissing petition as time-barred).

On April 16, 2020, petitioner filed his response to the Order to Show Cause. In his response, petitioner asserts that he is entitled to equitable tolling because he did not receive the post-conviction opinion filed on May 17, 2018. White v. State, No. 1622-CC11389 (22^nd Judicial Circuit, St. Louis City Court). Petitioner asserts that "because the Circuit Court never informedpetitioner that his post-conviction motion was denied, petitioner had no way of knowing that his one-year limitation period had expired."

Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable tolling is an exceedingly narrow window of relief Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001)."Pro se status, lack of legal knowledge or legal resources, confusion about or miscalculations of the limitations period, or the failure to recognize the legal ramifications of actions taken in prior post-conviction proceedings are inadequate to warrant equitable tolling. Shoemate v. Norris, 390 F.3d 595, 598 (8th Cir. 2004) (quotation marks omitted); Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (holding that 'even in the case of an unrepresented prisoner alleging a lack of legal knowledge or legal resources, equitable tolling has not been warranted).

The Court must first point out that petitioner does not need the benefit of equitable tolling in this instance. As stated above, even if the Court presumes that petitioner had no notice of the denial of his post-conviction proceedings, he filed his first Rule 91 within the time limits. Only two hundred-eighty-seven (287) days elapsed in his statute of limitations between the denial of his post-conviction motion and the filing of his Rule 91 motion on February 28, 2019. And, because his Rule 91 motion was properly filed, his limitations period was tolled during the pendency of that filing.

The Rule 91 proceedings were denied on July 10, 2019. It was at this point that petitioner failed to file his habeas corpus motion in federal court even though he should have done so withinthe next seventy-eight (78) days. Nonetheless, he waited until past the limitations period, on January 28, 2020, to file a second Rule 91 habeas. By this time, four-hundred-eighty-nine (489) days had passed in the limitations period, and petitioner's second Rule 91 could not serve to toll the limitations period. Only after his second Rule 91 was denied did petitioner think to file his federal habeas corpus on March 20, 2020, over five hundred (500) days into the statute of limitations period.

Although the Court has proven that petitioner was not diligently pursuing his rights, it will nonetheless address petitioner's equitable tolling arguments with relation to the post-conviction proceeding. He asserts that he should be given the benefit of equitable tolling of the statute of limitations because there was an extraordinary circumstance that stood in his way. Namely, petitioner asserts that he was never informed that his post-conviction motion was denied.

The Court takes judicial notice that although petitioner was assigned counsel in his post-conviction proceedings, on January 27, 2017, the parties appeared on petitioner's motion to dismiss appointed counsel so that petitioner could represent himself pro se. White v. State, No. 1622-CC11389 (22^nd Judicial Circuit, St. Louis City Court). After a hearing on the matter, the Court granted petitioner's motion to dismiss his appointed counsel on January 30, 2017. On February 15, 2017, petitioner filed a waiver of rights relative to representing himself pro se, stating:

1. I understand that I previously was found guilty by

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