Otte v. Morriss

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

SHAWN OTTE, )

Petitioner,

v. No. 4:24-CV-712 ACL

KELLY MORRISS,

Respondent.

MEMORANDUM AND ORDER

This matter is before the Court upon self-represented petitioner Shawn Otte’s response and

supplemental response to the Court’s August 8, 2024 Order to Show Cause as why his petition for

writ of habeas corpus should not be dismissed for either exhaustion or untimeliness. ECF Nos. 10,

11. Having reviewed the responses, it appears petitioner is intending to challenge his original

conviction in State v. Otte, Case No. 22RA-CR00040-01 (14th Jud. Cir. Ct., Randolph Cnty.). For

the reasons discussed below, the Court must dismiss this action as time-barred pursuant to 28

U.S.C. § 2254.

The Petition and First Amended Petition

Petitioner is a self-represented litigant who is currently in custody at Algoa Correctional

Center in Jefferson City, Missouri. On May 7, 2024, petitioner filed a handwritten petition for writ

of habeas corpus on fifteen pages of notebook paper.! ECF No. 1. The Court issued an Order

directing him to amend on a Court form as required by Local Rule 2.06(A). ECF No. 3.

On June 20, 2024, petitioner submitted his first amended petition under 28 U.S.C. § 2254

on a Court-provided form with five extra handwritten pages. ECF No. 6. He challenged three

' Petitioner certified he hand delivered the petition for mailing on May 7, 2024, and his envelope was postmarked May

13, 2024. See ECF Nos. | at 11; 1-3. “[A] pro se prisoner’s petition for writ of habeas corpus is filed on the date it is

aN prison authorities for mailing to the clerk of the court.” Nichols v. Bowersox, 172 F.3d 1068, 1077 (8th

separate judgments, two from Randolph County Circuit Court and one from a juvenile court. As

to State v. Otte, Case No. 18RA-CRO00067-01 (14th Jud. Cir. Ct., Randolph Cnty.), petitioner

entered a guilty plea on a charge of driving while revoked on June 17, 2020, the court suspended

the execution of his sentence, vetitioner was placed on supervised probation which was

subsequently revoked due to a violation, and he was sentenced on January 3, 2024.” As to State v.

Otte, Case No. 22RA-CR00040-01 (14th Jud. Cir. Ct., Randolph Cnty.), petitioner entered a guilty

plea on the charges of resisting/interfering with arrest and 3rd degree assault of a special victim on

March 9, 2023, the sentence was suspended, petitioner was placed on supervised probation which

was subsequently revoked due to a violation, and he was sentenced on March 13, 2024. As to the

third judgment, Case No. 22RA-JU-00028, the Court cannot review juvenile court matters on

Case.net.

On July 1, 2024, the Court directed petitioner to amend his petition again for the following

reasons: (1) the grounds raised were difficult to decipher due to the narrative format of his

assertions; (2) it was unclear whether petitioner was intending to dispute his probation revocations

or the original convictions; (3) he did not provide evidence of exhaustion if he was attempting to

challenge the revocation of his probation; and (4) the three actions he appeared to challenge did

not all arise from the same court. ECF No. 7. □

Second Amended Petition

On July 24, 2024, the Court received the second amended petition which appeared to

isolate the habeas challenge to one case: State v. Otte, Case No. 22RA-CR00040-01. ECF No. 8

at 1. Petitioner listed the grounds for his petition as: (1) “constitutional violation;” (2) “violation

of plead false charges,” (3) “stealing of my child;” and (4) “deny access to court.” Id. at 2-4, 6-9.

? Petitioner’s underlying criminal cases were reviewed on Case.net, Missouri’s online case management system. The

Court takes judicial notice of these public records. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (explaining that

district court may take judicial notice of public state recor’)

Petitioner checked the “yes” box in answer to the question of whether he appealed this

matter to the highest state, but then contradictorily wrote he did not appeal because the “Missouri

Supreme Court state[d] they don’t deal with those kind of claim[s].” Jd. at 2. Petitioner further

indicated he appealed from the judgment of conviction, id. at 3, but the case cited was a civil rights

action he filed in this Court pursuant to 42 U.S.C. § 1983 on January 26, 2024. See Otte v.

Fussleman, et al., Case No. 2:24-cv-00009-NCC. Under the sections to indicate whether he filed

post-conviction proceedings, petitioner listed an unrelated state criminal case, State v. Otte, Case

No. 18RA-CR00067-01, and an unrelated juvenile case, Case No. RA-JU00028. Jd. at 5, 8. These

matters are not post-conviction actions.

Show Cause Order

On August 8, 2024, the Court issued a Show Cause Order. ECF No. 9. The Court explained

that under 28 U.S.C. § 2254(b)(1), “[a]s a prerequisite for federal habeas review, a petitioner must

exhaust state remedies.” Jd. (quoting Frederickson v. Wood, 87 F.3d 244, 245 (8th Cir. 1996)

(citation omitted)). The Court instructed that if a person challenges a probation revocation, he may

pursue § 2254 relief only after exhausting state remedies by filing a state habeas petition under

Rule 91 in the circuit or associate circuit court of the county where he is in custody. See Mo. S. Ct.

R. 91.01(a). Thus, to be considered exhausted for purposes of federal habeas relief, the claims must

be presented in a Rule 91 state habeas petition to either the Missouri Court of Appeals or the

Missouri Supreme Court. See Upchurch v. Redington, 2018 WL 6046411 (E.D. Mo. Nov. 19,

2018). Petitioner here had not established he exhausted his state remedies as to his probation

revocation.

Additionally, because it was not entirely clear whether it was petitioner’s intent to

challenge his original conviction rather than the probation revocation, the Court also addressed the

issue of timeliness. Petitioner pled guilty on March 29, 2023 in State v. Otte, Case No. 22RA-

CR00040-01. On the same day of his plea, his execution of sentence was suspended, and he was

placed on probation for a period of 5 years with the State Board of Probation and Parole. Petitioner

subsequently violated his probation and, on March 13, 2024, he was sentenced to a total term of

imprisonment at the Missouri Department of Corrections of eleven (11) years. Petitioner’s

judgment on his original conviction became final ten (10) days after he was originally sentenced

on March 29, 2023, and his statute of limitations expired a year and ten days after that time on

April 8, 2024. His habeas petition was filed on May 7, 2024. Thus, petitioner’s application for writ

of habeas corpus as to his original conviction is untimely.

Consequently, the Court ordered petitioner to show cause why the petition should not be

dismissed under 28 U.S.C. § 2254(b)(1)(A) for failure to exhaust available state remedies in State

v. Otte, Case No. 22RA-CR00040-01 or, if he was intending to challenge his original conviction,

why the Court should not dismiss the petition as time-barred pursuant to 28 U.S.C. § 2254.

Petitioner’s Response to the Show Cause Order

Petitioner filed a sixteen-page response to the Court’s show cause order. ECF No. 10. On

the first page of the response, petitioner explicitly states he is challenging the “original conviction”

related to the guilty plea he entered for resisting arrest in State v. Otte, Case No. 22RA-CR00040-

01. Id. He argues he should not have also been charged for the 3rd degree assault of a special

victim because he did not plead guilty to that charge and, as a result, he was wrongfully convicted.

Id. at 1-3. He does not believe that the one-year statute of limitations period set by the Anti-

Terrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to him because his “case has

nothing to do with Terrorism or Death Penalty.” Jd. at 2. He further asserts he “didn’t know that a

writ of habeas corpus had a time limit[.}” Jd at 3. He asks this Court to contact the Randolph

County Public Defender’s Office for the video footage related to his underlying criminal

conviction to “see that there was no 3rd degree assault on a special victim.” Jd. at 5. Throughout

the remainder of the response, Petitioner insists he has exhausted his remedies or has at least

attempted to do so. Petitioner does not, however, provide any reasons for why the Court should

apply equitable tolling.

On October 1, 2024, the Court received an additional seven-page document from petitioner,

which appears to be a supplement to his show cause response. ECF No. 11. Within, petitioner

argues the criminal prosecutor in his criminal case should not be granted immunity. He also

discusses his frustration with a domestic relations action in Randolph County Court, in which it

appears he was denied custody of his son. He again contends he should not have been charged for

the 3rd degree assault of a special victim because he did not plead guilty to that charge. He further

takes issue with the general legality of same sex marriage. There is no mention of equitable tolling

within the filing.

Discussion

As detailed in the Court’s August 8, 2024 Order to Show Cause, Congress established a

one-year statute of limitations period under the AEDPA for petitioners seeking federal habeas

relief from state court judgments. Finch v. Miller, 491 F.3d 424, 426 (8th Cir, 2007). This one-

year statute of limitations begins to run on the latest of four alternative dates. Jihad v. Hvass, 267

F.3d 803, 804 (8th Cir. 2001). Relevant here is the provision stating that a habeas petitioner has

one year from the date his judgment becomes final to file his federal petition for writ of habeas

corpus. 28 U.S.C. § 2244(d)(1)(A).

Under Missouri law a suspended execution of sentence (“SES”) is an entry of judgment,

because the sentence has been assessed and only the act of executing the sentence has been

suspended. Laird v. Cassady, No. 4:18-CV-2078 HEA, 2019 WL 3752626, at *2 (E.D. Mo. Aug.

8, 2019) (citing State v. Nelson, 9 S.W.3d 687, 688 (Mo. Ct. App. 1999)). Thus, the time for filing

a direct appeal of the judgment expires ten (10) days after the judgment was entered. Mo. Sup. Ct.

R. 30.01(d).

Here, petitioner pled guilty on March 29, 2023 in State v. Otte, Case No. 22RA-CR00040-

01. On the same day of his plea, his execution of sentence was suspended, and he was placed on

probation for a period of 5 years with the State Board of Probation and Parole. Petitioner

subsequently violated his probation and, on March 13, 2024, he was sentenced to a total term of

imprisonment at the Missouri Department of. Corrections of eleven (11) years. Petitioner’s

judgment on his original conviction became final ten (10) days after he was originally sentenced

on March 29, 2023, and his statute of limitations expired a year and ten days after that time on

April 8, 2024. His habeas petition was filed on May 7, 2024. Thus, petitioner’s application for writ

of habeas corpus as to his original conviction is untimely.

The statute of limitations in 28 U.S.C. § 2244(d) is subject to the doctrine of equitable

tolling. See Gassler v. Bruton, 255 F.3d 492, 495 (8th Cir. 2001). A petitioner seeking application

of equitable tolling must show that “(1) he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way and prevented timely filing.” Holland v.

Florida, 560 U.S. 631, 649 (2010). See also Keller v. Pringle, 867 F.3d 1072, 1075-76 (8th Cir.

2017). The burden is on the petitioner to demonstrate grounds warranting equitable tolling. Pace

v. DiGuglielmo, 544 U.S. 408, 418 (2005). “The use of equitable procedures 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.” Earl v. Fabian, 556 F.3d

717, 722 (8th Cir. 2009).

As to the first prong, the diligence that is required for equitable tolling is “reasonable

diligence, not maximum feasible diligence.” Burks v. Kelley, 881 F.3d 663, 666 (8th Cir. 2018).

With regard to the second prong, there must be an extraordinary circumstance that is beyond the

prisoner’s control and which rises above “a garden variety claim of excusable neglect.” Martin v.

Fayram, 849 F.3d 691, 698 (8th Cir. 2017). This extraordinary circumstance must have made it

impossible for the prisoner to file a petition in time. Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th

Cir. 2000). Furthermore, the extraordinary circumstance must be external to the petitioner and not

attributable to his actions. Johnson v. Hobbs, 678 F.3d 607, 611 (8th Cir. 2012). Equitable tolling

provides otherwise time-barred petitioners with “an exceedingly narrow window of relief.” Jihad,

267 F.3d at 805.

The only argument the Court can find in his responses relevant to equitable tolling is that

he “didn’t know that a writ of habeas corpus had a time limit[.]” ECF No. 10 at 3. “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). Thus, “the fact that he did not know about the

limitations period cannot warrant equitable tolling.” Ingrassia v. Schafer, No. 4:10-CV-849 DDN,

2010 WL 2291840, at *2 (E.D. Mo. June 3, 2010). To any extent, petitioner can be understood to

argue that he should be allowed to proceed, despite untimeliness, because he is innocent of the

assault of a special victim charge, such an argument also fails. See Flanders v. Graves, 299 F.3d

974, 976-77 (8th Cir. 2002) (claim of actual innocence could not justify equitable tolling). As a

result, the Court will summarily dismiss the instant petition as time-barred.

Accordingly,

IT IS HEREBY ORDERED that petitioner’s application for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 [ECF No. 1] is DENIED AND DISMISSED AS TIME-BARRED.

See Rule 4 of the Rules Governing § 2254 Proceedings; 28 U.S.C. § 2244(d)(1)(A). A separate

order of dismissal will be entered herewith.

IT IS FURTHER ORDERED that this Court will not issue a certificate of appealability

in this action. |

Dated this 3" day of October, 2024.

J □□ i ROSS

UNI STATES DISTRICT JUDGE