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Macdl Winter 05.Qxp Newsletter P.O. Box 1543 MACDL Jefferson City, MO 65102 Missouri Association of Criminal Defense Lawyers Ph: 573-636-2822 Web page: www.macdl.net BY TIMOTHY R. CISAR Winter, 2005 MACDL PRESIDENT The new state legislature term has convened. Your Fanfan, 04-105 (2005 W L 50108). For those of us who MACDL Board met on January 22, 2005, and went over stayed away from the federal system because of these with our lobbyist all pending bills pertaining to criminal guidelines (and our lack of understanding thereof), I hope law. After discussion about each bill, the Board decided this affords us an opportunity to get into the federal which one to support or oppose. The Board then decided arena. Before doing so, I urge you to contact any number on each bill whether an attorney should show up and of our colleagues who regularly practice in the federal testify at the committee hearings. This process is time courts and seek their help. It is refreshing to see some consuming. The level of expertise and professionalism, shedding of “constitutional light” upon our system. which is displayed by your Board both at the Annual Another aside, if you have not yet digested Crawford vs. Meeting to discuss these bills and in committee meetings Washington, US, 124 S. Ct. 1354 (2004), from our U.S. at the state capital, is overwhelming. The amount of time, Supreme Court from last year, do so. It is monumental in which is volunteered by your Board, always makes me certain areas regarding the direct or indirect testimony of proud to be associated with this group. witnesses. If anyone is interested in becoming a part of this process, Keep up the good work. Do not be resistant to sharing please let us know at 573-636-2822 or at www.macdl.net. with your colleagues what is going on in your practice There is always a need for help at the committee level. and your personal life. It may help keep you sane. Appearing before a state legislature committee is both an honor and fun. I ask all of you to call and offer to do so. Thank you We will help with the content of the testimony. Timothy R. Cisar On another subject, it appears the federal sentencing [email protected] FROM THE DESK OF FROM guidelines are in the process of becoming advisory. United States vs. Booker, 04-104 and United States vs. MACDL would like to thank our sponsors at our 2004 Fall Conference held in October: hank LexisNexis The Bar Plan Wyrsch Hobbs & Mirakian, P.C. ou! Notes On Calculating The Statute Of Limitations For Filing Federal Habeas Corpus Petitions Challenging State Convictions By Lew Kollias and Elizabeth Unger Carlyle There is a one-year period 2. When the time begins to run again after the of limitation for filing a federal habeas corpus 29.15 Appeal. petition challenging a state The federal time will begin to run on the day after the last decision conviction. This article will by the state court, which is either from the date of the decision of the briefly discuss the appellate court if no post-opinion motions are filed, or the denial of calculation of the due date rehearing if no transfer motion is filed, or denial of transfer by the of the petition under various Mo. S.Ct. The time to file for certiorari does not toll the statute, scenarios common in Missouri. THIS IS A CRITICAL because the statute provides that only periods when the PCR is CALCULATION, BECAUSE VIOLATIONS OF THE STATUTE OF “actually pending” in state court are excluded. While some have LIMITATION ARE SELDOM EXCUSED. It is important for state argued that the 15 day period for filing post-opinion motions should practitioners to advise their clients correctly of the deadline. be excluded even if no motion is filed, there is no case law supporting this position. Therefore, to be on the safe side, clients 1. When the year starts to run after direct should be advised to count this 15 day period as part of the one-year appeal: limitation period. The statute provides that the year begins to run when the state court 3. When the time begins to run in guilty plea conviction becomes final. For the purpose of the statute, the decision is final: cases. 1) the date of the appellate court decision if no after-opinion motions All of the time between sentencing and the filing of a Rule 24.035 are filed, plus 90 days for expiration of the time to file a petition for motion counts against the year. When the 24.035 motion is filed, the certiorari to the United States Supreme Court; or time stops running. It begins to run again at the end of the Rule 24.035 proceeding, either in the circuit court if the case is not 2) the date certiorari is denied if a certiorari petition is filed; or appealed, or in the appellate court. 3) the date of the appellate court decision denying rehearing if Example: Client is sentenced on May 15, 2005, and delivered to transfer is not sought, plus the 90 days noted above to file for DOC on June 1, 2005. Client files timely 24.035 on November 27, certiorari; or 2005, it is denied, client appeals, appeal is denied on June 1, 2006, 4) the date of the Missouri Supreme Court decision denying transfer, and no post-opinion motions are pursued. Client must file a habeas if sought there, plus the 90 days noted above to file for certiorari. corpus petition by November 16, 2006, which deducts from the year the 196 days from sentencing to filing 24.035 in state court. The important thing to remember here is that the mandate is irrelevant in this analysis. The U.S. Supreme Court rules specifically References: provide that the time for seeking certiorari runs from the decision Federal statute of limitations: 28 U.S.C. §2244(d)(1) date, not the date the court issues its mandates. The mandate is always later than the decision date. In contrast to the U.S. Supreme U.S. Supreme Court Rule on when the 90-day period starts: U.S. Court rules, Missouri Rule 29.15 provides that the trigger for the Sup. Ct. R. 13.3 filing deadline is the date of the issuance of the appellate court’s “Finality” for limitation purposes: Smith v. Bowersox, 159 F.3d 345, mandate. The filing of a “properly filed” state post-conviction 347-348 (8th Cir. 1998), cert. denied, 119 S.Ct. 1133 (1999) proceeding stops the running of the one-year federal limitation period while the proceeding is “actually pending” in a Missouri court. “Actually pending” for tolling purposes: Mills v. Norris, 187 F.3d 881, But, if the client waits the entire 90 days from the mandate to file his 884 (8th Cir. 1999) initial Form 40, there will be a period that must be deducted from the one-year federal limitation period. Example: The client's case was decided by the appellate court on June 1, 2005. No post-opinion motions were filed. The mandate issued on August 31, 2005. The client filed his timely 29.15 motion MACDL The MACDL Newsletter is on November 29, 2005. His PCR was denied, and the denial was a semi-annual publication affirmed on appeal on June 1, 2006. Missouri Association of Criminal Defense Lawyers of the Missouri Association Any federal habeas corpus petition would be due March 1, 2007, of Criminal Defense Lawyers; P.O. Box 1543; Jefferson City, rather than May 31, 2007. The 90 days between the date when the case became final for federal habeas purposes [June 1 plus 90 days Missouri 65102 Phone: 573-636-2822; Fax: 573-636-9749 to file certiorari] and the time the 29.15 motion was actually filed Email: [email protected]; Website: www.macdl.net Your count against the limitation period. comments and suggestions are welcome! MACDL Newsletter ~ 2 ~ Winter 2005 Columbia Reforms Its Marijuana Laws By Dan Viets On November 2, 2004 61% Since November 3, the Municipal prosecuting attorney (who did not of the voters in the support passage of the ordinances) has made a good-faith attempt City of Columbia, Missouri to abide by their provisions. She is now routinely deferring voted to decriminalize prosecution on all first-time marijuana possession charges. misdemeanor marijuana A second charge may be prosecuted, but the prosecutor is no possession and 70% of longer opposing suspended imposition of sentence as she did them voted to allow the use previously. of small amounts of marijuana for medical purposes with no penalty. These reforms were the result of proposals placed on the One of the great advantages of a deferred prosecution is the fact ballot through the initiative process. that one does not lose one’s driver’s license when there is no prosecution. Under Missouri statutes, a person under 21 loses his The Medical Marijuana ordinance, Proposition 1, states that if a or her license for 90 days if he or she pleads guilty or is found guilty defendant’s doctor supports his or her need for marijuana for of marijuana possession, even in Municipal Court. A person over treatment of a serious medical condition, charges of possession of the age of 21 who is found to be in possession while operating a up to one and one quarter ounces (35 grams) shall be dismissed motor vehicle is in jeopardy of losing his or her driver’s license for by the Municipal prosecuting attorney.
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