MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH, Jr., District Judge.

This matter is before the Court on petitioner's response to the order to show cause.1 Having carefully reviewed petitioner's response, the Court concludes that his arguments are without merit, and that the instant action is time-barred under 28 U.S.C. § 2244.

Background

Petitioner, Barton Prince, entered a guilty plea in the Circuit Court of St. Charles County to three counts of child molestation, nine counts of statutory sodomy, and one count of statutory rape on March 13, 2012. On that same date, the Circuit Court for St. Charles County sentenced petitioner to concurrent sentences of seven years on each of the child molestation, statutory rape, and second degree statutory sodomy counts, and thirteen years on the remaining counts (which were first degree felony counts), to run concurrently. State v. Prince, No. 1011-CR01861-01 (11th Judicial Circuit, St. Charles County). Petitioner did not file a direct appeal.2

Petitioner filed a motion to vacate his sentence, brought pursuant to Missouri Supreme Court Rule 24.035, on September 4, 2012.3 Prince v. State, No. 1211-CC00856 (11th Judicial Circuit, St. Charles County). Petitioner voluntarily dismissed his motion to vacate on February 11, 2013. Id.

On October 28, 2013, petitioner filed a second motion to vacate his sentence, pursuant to Rule 24.035. Prince v. State, No. 1311-CC01081 (11th Judicial Circuit, St. Charles County). The motion court again appointed counsel to represent petitioner; however, almost immediately, petitioner's new counsel filed a motion to rescind the appointment asserting that because petitioner had voluntarily dismissed his prior motion to vacate, his new motion was successive. On February 5, 2014, private counsel for petitioner filed an entry of appearance. Petitioner's new counsel argued that counsel in the first post-conviction proceeding had abandoned petitioner. A hearing was held by the motion court on April 22, 2014, wherein petitioner's first post-conviction counsel testified. On June 24, 2014, the motion Court denied petitioner's abandonment of counsel defense and dismissed petitioner's motion to vacate as successive. Petitioner appealed the denial to the Missouri Court of Appeals. See Prince v. State, No. ED101813 (Mo.Ct.App. 2015). The Court of Appeals affirmed the motion court's ruling on September 1, 2015, and issued its mandate on September 23, 2015. Id.

Petitioner filed his federal writ of habeas corpus, pursuant to 28 U.S.C. § 2254 by placing the current application in the mail on September 20, 2015.

Discussion

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts provides that a district court shall summarily dismiss a § 2254 petition if it plainly appears that the petitioner is not entitled to relief. 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 file a direct appeal, his judgment becomes final upon expiration of the time within which he may file a notice of appeal, or within ten days of the date of his sentence. Mo. S. Ct. R. 81.04. Accordingly, petitioner's judgment of conviction became final on March 23, 2012.

Petitioner filed his first motion for post-conviction relief on September 4, 2012, and it was pending until he voluntarily dismissed his case on February 11, 2013.4 During the time the case was pending, the statute was of limitations was tolled. However, the period between the finality of his judgment and the application for post-conviction relief must be counted toward the one-year limitations period. See Maghee v. Ault, 410 F.3d 473, 475 (8th Cir. 2005); Curtiss v. Mount Pleasant Corr. Facility, 338 F.3d 851, 854 (8th Cir. 2003). As such, petitioner accrued one-hundred sixty-five (165) days toward the limitations period during this time period.

On October 28, 2013, petitioner filed his second post-conviction motion to vacate. The motion was denied on June 24, 2014, and petitioner immediately appealed. The appeal was not complete until the mandate issued on September 23, 2015. The one-year limitations period was tolled during the entire pendency of petitioner's post-conviction proceedings, that is, from October 28, 2013 through September 23, 2015. See Payne v. Kemna, 441 F.3d 570, 572 (8th Cir. 2006) (post-conviction relief proceedings final on issuance of the mandate).

However, the matter was not tolled between February 11, 2013 and October 28, 2013, between the time he voluntarily dismissed his first post-conviction relief motion and filed his second. During this time period, two-hundred and fifty-nine (259) days passed. The instant petition has been filed four-hundred and twenty-four (424) days after petitioner's state court judgment of conviction became final; thus, it was filed more approximately fifty-nine (59) days late.

Petitioner argues that he should be given the benefit of equitable tolling in this Court because: (1) his criminal trial counsel was ineffective and failed to file a direct appeal of his conviction and sentence; (2) he did not understand his post-conviction appointed counsel when he agreed to waive his post-conviction proceedings because of the medications he was taking at the time, thus he does not believe he voluntarily consented to such a waiver; and (3) petitioner believes he placed his § 2254 petition in the mail within the proper time period of filing his second post-conviction motion. The Court will address each of petitioner's arguments in turn.

Under the doctrine of equitable tolling, the AEDPA's statutory limitations period may be tolled if a petitioner can show that (1) he has been diligently pursuing his rights and (2) an extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is a flexible procedure that involves both recognition of the role of precedent and an "awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case." Id. at 649-50.

The Court will address petitioner's first and second arguments, that his criminal trial counsel was ineffective for failing to file a direct appeal of his conviction and sentence and that he did not understand his post-conviction counsel when he agreed to waive his post-conviction proceedings.

The Court has attained a copy of petitioner's guilty plea transcript from Missouri.Case.Net, at which petitioner waived his right to file a direct appeal, as well as his right to file a motion to vacate, in order for the state to dismiss Count VII of the charge against him. At the hearing, the following colloquy occurred:

Petitioner: Yes.

(Transcript 39-43)

A movant can waive his right to seek an appeal, as well as post-conviction relief in return for a reduced sentence, if the record clearly demonstrates that the movant was properly informed of his rights and that the waiver was made knowingly, voluntarily and intelligently. See Cooper v. State, 356 S.W.3d 148, 154 (Mo banc 2011). Petitioner has not alleged that his waiver of his right to file a direct appeal and a post-conviction motion was not made voluntary and intelligent.5 As the record outlined above shows, petitioner understood that he was waiving his right to file a direct appeal, as well as a post-conviction relief motion. Thus, it is disingenuous for him now to claim that he did not understand the waiver of his right to appeal, or that his own counsel was ineffective for failing to file either a direct appeal or a post-conviction relief motion.6 The Court notes that petitioner made these same arguments in front of his post-conviction court, seeking to reinstate his second post-conviction proceedings. After a full evidentiary hearing, the court failed to find petitioner's arguments availing. The Court of Appeals affirmed the denial of petitioner's attempts at post-conviction relief, finding that there was no abandonment of post-conviction counsel.7

The Court will last address petitioner's argument that the Court should "start the clock" on the statute of limitations from the date of petitioner's second post-conviction filing in state court. Petitioner's assertion is simply incorrect. Even providing petitioner the benefit of the doubt and giving him equitable tolling for both time periods when his post-conviction motions were pending, the time between when his motions were pending must be counted toward the statute of limitations. Thus, this matter was not tolled between February 11, 2013 and October 28, 2013, between the time he voluntarily dismissed his first post-conviction relief motion and filed his second. During this time period, two-hundred and fifty-nine (259) days passed. The instant petition has been filed four-hundred and twenty-four (424) days after petitioner's state court judgment of conviction became final; thus, it was filed more approximately fifty-nine (59) days late.

Accordingly,

IT IS HEREBY ORDERED that petitioner's application for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, is DENIED AND DISMISSED, as time-barred.

IT IS FURTHER ORDERED that no certificate of appealability shall issue.

A separate Order of Dismissal shall accompany this Memorandum and Order.