United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner's application
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The petition is successive and shall be summarily denied and
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.
September 30, 2008, petitioner pled guilty to felony
theft/stealing over $500 in property. See State v.
Mullins, No. 08BB-CR00984-01 (12th Judicial
Circuit, Warren County Court). On that same date he was
sentenced to an aggregate prison term of ten years in the
Missouri Department of Corrections. The court suspended the
execution of the sentence (“SES”), and retained
jurisdiction over petitioner for 120 days, pursuant to
Mo.Rev.Stat. § 559.115 under the Missouri Shock
Incarceration Program. On December 16, 2008, the court
ordered that petitioner be released on probation for a period
of five years. Petitioner did not appeal the sentence or file
a timely motion for post-conviction relief.
court revoked petitioner's probation on September 9,
2010. Id. Petitioner waited until April 19, 2017 to
file a motion for post-conviction relief under Missouri Rule
24.035, which was denied on that same date without a hearing.
See Mullins v. State, No. 17BB-CC00036
(12th Judicial Circuit, Warren County Court).
Petitioner is currently incarcerated at Eastern Reception
Diagnostic and Correctional Center, where Troy Steele is
filed an initial application for writ of habeas corpus in
this Court on May 23, 2017. See Mullins v. Steele,
No. 4:17-CV-1562 JMB (E.D.Mo.). The Court dismissed the
petition as untimely on June 21, 2017. Id.
Petitioner did not appeal this Court's
dismissal of a federal habeas petition on the ground of
untimeliness is a determination “on the merits”
for purposes of the successive petition rule. See, e.g.,
In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per
curiam); Quezada v. Smith, 624 F.3d 514, 519B20 (2d
Cir. 2010) (“We hold that dismissal of a § 2254
petition for failure to comply with the one-year statute of
limitations constitutes an adjudication on the merits that
renders future petitions under § 2254 challenging the
same conviction ‘second or successive' petitions
under § 2244(b).” (additional internal quotation
marks omitted)). As a result, the instant motion is
28 U.S.C. § 2244(a) and § 2255(h) district courts
may not entertain a second or successive motion to vacate
unless it has first been certified by the Court of Appeals.
The instant petition has not been certified by the Court of
Appeals for the Eighth Circuit. As a result the Court may not
grant the requested relief.
extent that petitioner seeks to relitigate claims that he
brought in his original petition, those claims must be denied
pursuant to 28 U.S.C. § 2244(b)(1). To the extent that
petitioner seeks to bring new claims for habeas relief,
petitioner must obtain leave from the United States Court of
Appeals for the Eighth Circuit before he can bring those
claims in this Court. See 28 U.S.C. §
2244(b)(3)(A). Petitioner has not been granted leave to file
a successive habeas petition in this Court. As a result, the
petition shall be denied and dismissed.
IT IS HEREBY ORDERED petitioner's motion
to proceed in forma pauperis [Doc. #2] is
IS FURTHER ORDERED that petitioner's application
for writ of habeas corpus is DENIED AND DISMISSED AS
IS FURTHER ORDERED that petitioner's motion for
appointment of counsel [Doc. #3] is DENIED AS
IS FURTHER ORDERED that the Court declines to issue