United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1336

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Antwoine Petty, *

*

Appellant, * Appeal from the United States

* District Court for the Eastern

v. * District of Missouri.

*

Ansel Card, * PUBLISHED

*

Appellee. *

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 Submitted: September 14, 1999

Filed: October 18, 1999

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Before McMILLIAN, FAGG, and MURPHY, Circuit Judges.

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PER CURIAM.

Antwoine Petty pleaded guilty in Missouri state court to several burglary-related

charges and received a nine year sentence. Petty filed a state postconviction motion,

which was denied as untimely because it was filed more than ninety days after Petty’s

sentencing. In February 1996, Petty filed a pro se 28 U.S.C. § 2254 petition for writ

of habeas corpus. The magistrate judge, to whose jurisdiction the parties consented

under 28 U.S.C. § 636(c) (1994), denied habeas relief, concluding Petty had

procedurally defaulted his claims and had not shown cause and prejudice excusing his

default.
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On appeal, Petty concedes he did not file a timely state postconviction motion.

(Appellant’s Br. at 8.) Petty contends, however, that the magistrate judge committed

error in concluding he did not show cause and prejudice to overcome his procedural

default because:

[Petty] did not know (and could not have known) that the state trial court

was going to renege on its promise to release him on probation [if he

successfully completed a drug treatment program] until after he

successfully completed [the] . . . program – more than 90 days later. . . .

By failing to take into account the effect of the time to complete the drug

treatment program (more than 110 days) on Petty’s ability to know

whether he had a basis to file a [state postconviction] motion, the district

court erred in concluding that Petty’s failure to file such a motion within

the 90 day time limit was [i]nexcusable.

(Appellant’s Br. at 9-10.) In other words, Petty argues he believed the trial court would

give him probation when he completed his drug treatment program and could not know

he had a factual basis for filing a state postconviction motion until after the trial court

refused to release him – more than ninety days after sentencing. The Government

contends Petty cannot raise this allegation of cause on appeal because Petty did not

present it to the magistrate judge. We agree.

A liberal reading of Petty’s § 2254 petition and supplemental pleadings reveals

that Petty presented five claims to the magistrate judge. See Prince v. Lockhart, 971

F.2d 118, 121 (8th Cir. 1992) (pro se habeas petition entitled to liberal

construction); Thompson v. Missouri Bd. of Parole, 929 F.2d 396, 399 (8th Cir. 1991)

(court will review pro se habeas petition and any supplemental pleadings to determine

whether petitioner raised claim in district court). In his petition, Petty alleged: (1)

ineffective assistance of counsel because his attorney did not discuss defense strategies

with Petty but simply gave him the plea agreement; (2) the trial court engaged in

judicial misconduct and breached the plea agreement by refusing to release Petty on
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probation as promised after receiving a release recommendation from the drug

treatment facility; (3) Petty’s plea was involuntary because he pleaded guilty only after

his counsel and the trial court promised to release Petty on probation if the treatment

facility recommended release; and (4) Petty did not have access to legal materials or

legal assistance during the first 110 days of his incarceration at the drug treatment

facility, causing Petty to miss the ninety-day filing deadline for his state postconviction

motion. In addition to the claims asserted in his petition, Petty vaguely asserted in his

objections to the Government’s response to his petition that “[a]s the petitioner

indicated in his Habeas Petition, he was prevented from [raising his first three grounds

of relief in a state postconviction motion] d[ue] to Governmental Interference which is

both cause and actual prejudice for his procedural default.” 

Even read liberally, none of these allegations encompasses Petty’s new claim on

appeal that he did not know of the factual basis for state postconviction relief until it

was too late to file a motion. Because neither the magistrate judge nor the Government

had notice of this particular claim, Petty has procedurally defaulted it. See Prince, 971

F.2d at 121. Petty has not attempted to show cause for his failure to raise this issue

before the magistrate judge, and, thus, we cannot excuse his procedural default. See

id. 

We affirm the denial of Petty’s petition for writ of habeas corpus.

MURPHY, Circuit Judge, dissenting.

In his pro se petition for habeas relief, Petty alleged facts sufficient to show the

basis on which he claims cause and prejudice to excuse his procedural default of not

filing a state motion for postconviction relief within ninety days. He is therefore

entitled to have further consideration of his claims in the district court, and I

respectfully dissent from the denial of his petition at this threshold stage.
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Petty's underlying claims all relate to the allegation that he did not receive the

probation he was promised upon completion of a drug treatment program. He alleged

four grounds for relief in his petition: ineffective assistance of counsel, breach of plea

agreement, involuntary guilty plea, and denial of due process and his right to appeal.

He claimed that both his counsel and the court had told him "he would be released to

probation upon the Court's receipt of the treatment facilities [sic] recommendation for

release to probation and successful completion of program (movant has completion

certificate)." He also alleged that he was "in treatment program for the first 110 days

of his conviction" without access to legal materials or assistance and that he was

effectively denied his right to appeal. 

Petty's allegations are contained in short adjacent paragraphs. They make it

clear, when liberally construed as pro se petitions must be, see e.g. Boag v.

MacDougall, 454 U.S. 364, 365 (1982), that he had anticipated that he would receive

the promised probation upon successful completion of the program, which took him one

hundred and ten days. The facts alleged show that it was only after these one hundred

and ten days that he knew he would not be placed on probation, and the ninety day

limitation period for motions, which he refers to as the "appeal period", had already

passed. As he alleged, "Movant's 90th day came and went while in treatment. Movant

feels this operated as an effective denial of his right to appeal." Petty was granted a

certificate of appealability by this court, and appointed counsel now makes the claim

of cause and prejudice much more artfully than the pro se submissions.

 

Petty's pro se filings were sufficient to be construed as alleging that he could not

have known the basis on which his claims arose until the court denied his probation

after the time for the filing of a postconviction motion. In the state's response in the

district court, it indicated that it assumed Petty's "fourth ground for relief . . . that he

was denied his right to appeal is an allegation of cause." Petty stated in reply that "as

indicated" in his petition, he had been prevented from filing a timely notice by

"Governmental Interference which is both cause and actual prejudice for his procedural
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default." He alleged that he did not have access to legal materials while in the

treatment program and that a request to use the library facilities available to the general

population would have resulted in his being dropped from the program, "thereby

terminating his chances for release to probation all-together." It could also be

understood from the face of his petition that he had no grounds for filing a motion for

postconviction relief until after the ninety day motion period had expired. See Meagher

v. Dugger, 861 F.2d 1242 (11th Cir. 1988) (pro se habeas claim of involuntary guilty

plea not procedurally defaulted for failure to meet filing deadlines where petitioner did

not learn until later that sentences would not run concurrently as promised; magistrate

judge failed to evaluate petition using less stringent standard); see also Watts v.

Petrovsky, 757 F.2d 964, 966 (8th Cir. 1985) (issue not ripe for presentation where

claim is speculative). 

"A pro se . . . petitioner is not required to identify specific legal theories. . . in

order to be entitled to relief." Frey v. Schuetzle, 78 F.3d 359, 361 (8th Cir. 1996),

quoting Jones v. Jerrison, 20 F.3d 849, 853 (8th Cir. 1994). Not only must the

allegations of a pro se habeas petitioner "be construed more liberally. . . but unincluded

allegations of 'apparent' facts may be treated as part of the complaint for the purpose

of determining whether an issue should be remanded for further investigation."

Williams v. Lockhart, 849 F.2d 1134, 1138 (8th Cir. 1988). See also Thompson v.

Housewright, 741 F.2d 213 (8th Cir. 1984); White v. Wyrick, 530 F.2d 818 (8th Cir.

1976). The magistrate judge understood that Petty was attempting to establish "good

cause and actual prejudice", and the facts essential to his allegation of cause were

contained within his petition. Petty did not explicitly link his factual allegations to say

that he could not have known the nature of his problem until after the motion deadline

had passed, but he stated all of the underlying facts in a few short paragraphs. His lack

of timely knowledge of the basis of his claim is apparent on the face of his petition. He

is therefore entitled to further consideration by the district court.
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I would remand the case for further proceedings. The state indicated at oral

argument that on a remand it would move to dismiss for failure to exhaust state

remedies since Petty's claims are of a type that could have been brought in a Missouri

habeas action. Petty's counsel indicated that he believes the claims have been

exhausted, but the district court should have an opportunity to rule on the point.

Counsel also indicate that if the matter is not dismissed for failure to exhaust, a

transcript of the state plea proceedings will be needed to see whether petitioner was in

fact given any promise of probation. All that is before us at this time, however, is

whether Petty sufficiently alleged cause and prejudice in the district court to excuse his

procedural default, and I believe he did when his pro se allegations are considered in

combination.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.