United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner Robert Bell,
Jr.'s motion for leave to proceed in forma pauperis, and
his petition for writ of habeas corpus, filed pursuant to 28
U.S.C. § 2254. The Court will grant petitioner leave to
proceed in forma pauperis, and will summarily dismiss the
petition because it is successive and was filed without
authorization from the Eighth Circuit Court of Appeals.
2004, a jury in the St. Louis City Circuit Court found
petitioner guilty of first-degree murder, and he was
sentenced to life imprisonment without the possibility of
parole. See State v. Robert Bell, No. 22031-00035-01
(22nd Jud. Cir. Apr. 30, 2004). The Missouri Court of Appeals
affirmed petitioner's conviction, and also affirmed the
denial of petitioner's motion for post-conviction relief.
In December of 2008, petitioner filed a petition for writ of
habeas corpus in this Court pursuant to 28 U.S.C. §
2254, seeking to challenge his 2004 conviction and sentence.
See Bell v. Steele, No. 4:08-cv-1950-HEA/MLM (E.D.
Mo. Dec. 11, 2008). However, on August 3, 2009, petitioner
filed a motion to voluntarily dismiss the petition to allow
him to pursue further state remedies. On August 24, 2009, the
Court granted petitioner's motion and dismissed the
petition, without prejudice. Petitioner pursued further
remedies in state court.
4, 2010, petitioner filed another petition for writ of habeas
corpus in this Court pursuant to 28 U.S.C. § 2254,
seeking to challenge his 2004 conviction and sentence.
See Bell v. Steele, 4:10-cv-1037-HEA/MLM (E.D. Mo.
Jun. 4, 2010). On September 30, 2011, that petition was
denied and dismissed as untimely. On October 3, 2011,
petitioner, through appointed counsel, filed a motion for
reconsideration, asking the Court to vacate its dismissal and
allow him to file an amended petition. The Court construed
petitioner's motion as a motion to alter or amend the
judgment under Rule 59 of the Federal Rules of Civil
Procedure, granted the motion, vacated its order dismissing
the case, and allowed petitioner leave to file an amended
petition. Petitioner filed an amended petition, and on
October 23, 2014, the Court dismissed it as untimely.
Petitioner appealed, and on March 11, 2015, the Eighth
Circuit Court of Appeals dismissed the appeal.
April 11, 2019, petitioner filed the instant petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
seeking to challenge the same 2004 conviction and sentence.
Briefly, petitioner claims that his right to speedy trial was
violated, that his DNA and the victim's DNA were nearly
identical, that the prosecution destroyed exculpatory
evidence, and that a St. Louis City Police Department
criminalist committed perjury. He states his “first
petition was denied because appointed counsel was ineffective
my actual innocence, if proved, serves as a gateway.”
(Docket No. 1 at 14).
seeks to challenge the same conviction and sentence he
challenged in his 2010 petition, which was adjudicated on its
merits. Therefore, the Court determines that the instant
petition is a second or successive petition. See
Diaz-Diaz v. United States, 297 Fed.Appx. 574, 575 (8th
Cir. 2008) (per curiam) (holding that a denial of a §
2255 petition as untimely is considered to be made on the
merits); Johnson v. Workman, 446 Fed.Appx. 92, 93
n.1 (10th Cir. 2011) (“The dismissal of a § 2254
petition as time-barred is a decision on the merits for
purposes of determining whether a subsequent petition is
second or successive”); McNabb v. Yates, 576
F.3d 1028, 1029-30 (9th Cir. 2009) (same); Murray v.
Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (same);
Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003)
(per curiam) (same). Pursuant to 28 U.S.C. §
2244(b)(3)(A), before a second or successive petition that is
permitted by § 2244(b) is filed in this Court, the
petitioner must obtain an order from the Eighth Circuit Court
of Appeals authorizing this Court to consider the petition.
Petitioner does not allege, nor does independent inquiry
reveal, that he obtained such leave before filing the instant
petition. Therefore, this Court lacks jurisdiction to
consider it. See Burton v. Stewart, 549 U.S. 147,
Court finds it would not be in the interest of justice to
require the transfer of this case to the Eighth Circuit Court
of Appeals, and will instead dismiss the petition for lack of
jurisdiction. To the extent that petitioner seeks to
re-litigate claims that he brought in his 2010 petition,
those claims are denied pursuant to 28 U.S.C. §
2244(b)(1). Finally, the Court finds that petitioner has not
made a substantial showing that he was denied a
constitutional right, and will therefore not issue a
certificate of appealability.
for all of the foregoing reasons, IT IS HEREBY
ORDERED that petitioner's motion to proceed
in forma pauperis (Docket No. 2) is
IS FURTHER ORDERED that petitioner's petition
for writ of habeas corpus is DENIED AND
DISMISSED. A separate Order of Dismissal shall
accompany this Memorandum and Order.
IS FURTHER ORDERED that the Court will not issue a