Ewing v. Wallace

Filing 8

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioners motion for change of judge [Doc. #6] is DENIED. IT IS FURTHER ORDERED that petitioners motion to proceed in forma pauperis [Doc. #3] is DENIED AS MOOT as petitioner has paid the $5 filin g fee. IT IS FURTHER ORDERED that petitioners application for writ of habeas corpus is DISMISSED without prejudice pursuant to Fed. R. Civ. P. 41(b). IT IS FURTHER ORDERED that petitioners motion to admit probative evidence [Doc. #7] is DENIED AS MOOT. A separate Order of Dismissal shall accompany this Memorandum and Order. Dated this 28th day of September, 2012. Signed by District Judge Audrey G. Fleissig on 9/28/12. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JERMAINE S. EWING,
Petitioner,
v.
IAN WALLACE,
Respondent.

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No. 4:12CV1201 AGF

MEMORANDUM AND ORDER
This matter is before the Court upon its own review. Because petitioner has
failed to comply with a prior Order of this Court, this action will be dismissed
pursuant to Federal Rule of Civil Procedural 41(b).
Background
On July 2, 2012, petitioner filed an application for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Because the petition had not been submitted on a
court-form and the manner in which the petition was drafted made it difficult to
review, the Court, on July 20, 2012, ordered petitioner to amend his application for
habeas corpus on the Court’s form for filing a “Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody.” In that same order,

petitioner was also required to pay the $5 filing fee or file a motion to proceed in
forma pauperis.1
Rather than file an amended petition in a timely manner, petitioner filed a
motion to disqualify the undersigned. On August 13, 2012, the Court denied
petitioner’s motion to disqualify, finding that petitioner’s motion for recusal was not
well-taken.2 Again, the Court ordered petitioner to amend his application for writ of
habeas corpus on a court-provided form, giving him thirty (30) days from the date of
that Memorandum and Order to do so.
Discussion
Upon review of the Court file, petitioner has failed to comply with this
Court’s Memorandum and Order. He has still not filed an amended petition in this
action. Instead, petitioner has again moved for “change of judge,” and to “admit
probative evidence.” The Court has reviewed petitioner’s arguments for
disqualification of the undersigned in this action and has found them frivolous and
wholly unsupported. Moreover, petitioner’s arguments are nothing more than a
1

Petitioner has since paid the filing fee and filed a motion to proceed in forma
pauperis.
2

Petitioner requested that the Court recuse herself from this matter because
the Court previously denied a prior habeas corpus petition brought by petitioner, in
addition to denying his previous request for expansion of the record. See Ewing v.
Steele, 4:09CV393 AGF (E.D. Mo.).
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request for reconsideration of his earlier motion to disqualify, as such, his motion for
change of judge will be denied in accordance with the Court’s August 13, 2012
Memorandum and Order.3
Rule 41 of the Federal Rules of Civil Procedure permits the Court to dismiss
a case for failure to prosecute or to comply with a Court order. Because petitioner
has failed to file an amended application for writ of habeas corpus on a court-form
in a timely manner, in accordance with this Court’s August 13, 2012 Memorandum
and Order, this action will be dismissed.4 The Court will further deny petitioner’s
motion “to admit probative evidence” as moot.

3

Additionally, petitioner appears to be requesting reconsideration of the
Court’s denial of his petition for habeas corpus in his 2009 case before this Court.
See Ewing v. Steele, 4:09CV393 AGF (E.D. Mo.). This is neither the proper forum
nor the proper vehicle for requesting reconsideration of the denial of his habeas
corpus petition.
4

Even if petitioner had filed an amended petition in a timely manner it is likely
his petition would have been dismissed as successive, as petitioner has previously
brought an application for writ of habeas corpus on this same conviction in this
Court. See Ewing v. Steele, 4:09CV393 AGF (E.D. Mo.). To the extent that
petitioner seeks to relitigate claims that he brought in his original petition, those
claims would likely 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 would have to
obtain leave from the United States Court of Appeals for the Eighth Circuit before
he could bring those claims in this Court. 28 U.S.C. § 2244(b)(3)(A).
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Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for change of judge
[Doc. #6] is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion to proceed in forma
pauperis [Doc. #3] is DENIED AS MOOT as petitioner has paid the $5 filing fee.
IT IS FURTHER ORDERED that petitioner’s application for writ of
habeas corpus is DISMISSED without prejudice pursuant to Fed. R. Civ. P. 41(b).
IT IS FURTHER ORDERED that petitioner’s motion to admit probative
evidence [Doc. #7] is DENIED AS MOOT.
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 28th day of September, 2012.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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