Barnett v. Roper

Filing 80

MEMORANDUM AND ORDER: IT IS FURTHER ORDERED that petitioner's Supplemental Application for Habeas Corpus Under 28 U.S.C. § 2254 [Doc. 77 ] is DISMISSED without prejudice. IT IS FURTHER ORDERED that petitioner's motion for relief from judgment [Doc. 78 ] is DENIED. Signed by Honorable E. Richard Webber on July 10, 2012. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID M. BARNETT,
Petitioner,
v.
DON ROPER,
Respondent.

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CAPITAL CASE
No. 4:03CV00614 ERW

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s “Supplemental Application for
Habeas Corpus Under 28 U.S.C. § 2254.” The Court has reviewed the application and
finds it to be a second or successive petition under 28 U.S.C. § 2244. As a result, the
Court cannot grant the relief requested in the application unless the Eighth Circuit Court
of Appeals gives petitioner authorization to file the application in this Court. Id. The
Court, therefore, will dismiss the application without prejudice.
Petitioner also moves the Court for relief under Rule 60(b) of the Federal Rules
of Civil Procedure based on the United States Supreme Court’s ruling in Martinez v.
Ryan, 132 S. Ct. 1309 (2012) (establishing that criminal defendants have right to
effective assistance of counsel during initial collateral review proceedings). The
request for review under Rule 60(b) is untimely. Furthermore, to the extent that
petitioner seeks relief pursuant to a new theory, he must first obtain authorization from

the United States Court of Appeals for the Eighth Circuit before he may file a
successive petition in this Court. Finally, the Court notes that petitioner may not obtain
federal habeas relief based on the ruing in Martinez because it is not a new rule of
constitutional law that is retroactively available on collateral review. See 132 S. Ct.
at 1318-19 (Martinez was an “equitable ruling” that did not establish a new rule of
constitutional law); 28 U.S.C. § 2244(b)(2)(A). As a result, the motion for relief from
judgment will be denied.
Accordingly,
IT IS FURTHER ORDERED that petitioner’s “Supplemental Application for
Habeas Corpus Under 28 U.S.C. § 2254” [Doc. 77] is DISMISSED without prejudice.
IT IS FURTHER ORDERED that petitioner’s motion for relief from judgment
[Doc. 78] is DENIED.
So Ordered this 10th day of July, 2012.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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