# Otte v. Morriss

> District Court, E.D. Missouri · October 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10652335

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** October 3, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- explaining that district court may take judicial notice of public state recor’

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10652335. Public record. Not legal advice.