Anderson v. Johnson

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Report and Recommendation filed on December 9, 2013 # 14 is adopted and sustained, except as stated above. IT IS FURTHER ORDERED that petitioners objections to the Report and Recommendation # 24 are overruled. IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus # 1 is denied. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Rodney W. Sippel on 4/3/14. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EARL ANDERSON,
Petitioner,
vs.
JEAN ANN JOHNSON,
Respondent.

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Case No. 4:11CV179 RWS

MEMORANDUM AND ORDER
This matter is before the Court on the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner Earl Anderson. The Court
referred this matter to United States Magistrate Judge Lewis M. Blanton for a
report and recommendation on all dispositive matters pursuant to 28 U.S.C. §
636(b). On December 9, 2013, Judge Blanton filed his recommendation that
petitioner’s habeas petition should be denied. Judge Blanton then recommended
that petitioner’s motion to amend his petition be denied as untimely. Petitioner
objects to the Report and Recommendation. Although his objections are difficult
to discern, petitioner appears to be raising the same arguments that he made before
Judge Blanton in support of his habeas petition. He also argues that the Report
and Recommendation is “void” and that he had a right to amend the petition.

I have conducted a de novo review of all matters relative to petitioner’s
objections. After careful consideration, I will adopt and sustain Judge Blanton’s
Report and Recommendation in its entirety. I find that Judge Blanton correctly
decided that petitioner’s claim was both procedurally defaulted and meritless.
Petitioner was present when he was sentenced, and the subsequent nunc pro tunc
order entered by the state court does not change that fact. His due process claim
fails. His proposed amended claims are also untimely, as they were filed outside
the one-year limitations period and do not relate back to the date of the original
habeas petition. See Mayle v. Felix, 545 U.S. 644, 655 (2005). Petitioner,
therefore, did not have a “right” to amend his petition, and Judge Blanton correctly
denied leave to amend. I summarily overrule petitioner’s objection that the Report
and Recommendation was “void” as meritless.
I have also considered whether to issue a certificate of appealability. To
grant a certificate of appealability, the Court must find a substantial showing of
the denial of a federal constitutional right. See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are
debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997) (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)). Because
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petitioner has not made such a showing, I will not issue a certificate of
appealability.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation filed on
December 9, 2013 [#14] is adopted and sustained, except as stated above.
IT IS FURTHER ORDERED that petitioner’s objections to the Report
and Recommendation [#24] are overruled.
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas
Corpus [#1] is denied.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.

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RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of April, 2014.

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