Harris v. State of Missouri

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that no order to show cause shall issue as to respondent, because the instant petition is su ccessive under 28 U.S.C. § 2244 (b)(3)(A). IT IS FURTHER ORDERED that petitioners application for a writ of habeas corpus is DENIED, without prejudice. IT IS FURTHER ORDERED that the Clerk shall TRANSFER the instant petition to the United States Court of Appeals for the Eighth Circuit pursuant to 28 U.S.C. § 1631.. Signed by Magistrate Judge Terry I. Adelman on 1/14/2013. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

EDGAR HARRIS,
Petitioner(s),
vs.
STATE OF MISSOURI,
Respondent(s).

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Case No. 4:12-CV-2004-TIA

MEMORANDUM AND ORDER OF TRANSFER
This matter is before the Court upon review of Edgar Harris’ petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254.1 In addition, petitioner has filed a
motion for leave to commence this action without payment of the required filing fee.
See 28 U.S.C. § 1915(a). Upon consideration of petitioner’s financial information, the
Court finds that he is financially unable to pay any portion of the filing fee. Therefore,
the Court will grant petitioner leave to proceed in forma pauperis.
Petitioner is challenging the constitutionality of his July 7, 1998 conviction in the
Circuit Court of Cape Girardeau County, Missouri, for robbery and armed criminal
action. The Court's records show that petitioner previously brought a § 2254 petition
for a writ of habeas corpus challenging his 1998 conviction, and that the action was

1

Both parties have consented to having a United States Magistrate Judge
conduct all proceedings in this case [Doc.#4]. See 28 U.S.C. § 636(c)(1).

dismissed as untimely.2 See Harris v. Luebbers, No. 4:02-CV-1893-TIA (E.D. Mo.).
Title 28 U.S.C. § 2244(b)(3)(A) provides that "[b]efore a second or successive
application permitted by this section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order authorizing the district court to
consider the application."
There is no indication that the Court of Appeals has certified the instant habeas
application as required by § 2244(b)(3)(A). As such, this Court lacks authority to grant
petitioner the relief he seeks. Rather than dismiss this action, the Court will transfer
the petition to the Eighth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631. See
In re Sims, 111 F.3d 45, 47 (6th Cir. 1997); Coleman v. United States, 106 F.3d 339
(10th Cir. 1997); Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996).
Therefore,
IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.

2

Although unpublished, opinions by the Eighth Circuit Court of Appeals and
by other district courts in this circuit have uniformly held that a habeas corpus action
dismissed as untimely is a decision on the merits. See Diaz-Diaz v. U.S., 297 Fed.
Appx. 574, 575 (8th Cir. Oct. 29, 2008); Young v. Norman, No. 4:10-CV-2186DDN, 2010 WL 5184886, at*1 (E.D. Mo. Dec. 15, 2010); Hazelett v. U.S., No.
4:10-CV-2214-JCH, 2010 WL 5184888, at *1 (E.D. Mo. Dec. 15, 2010).
Similarly, several other courts of appeals have held that a dismissal on statute of
limitations grounds constitutes a decision on the merits. See McNabb v. Yates, 576
F.3d 1029, 1030 (9th Cir. 2009); Villanueva v. U.S., 346 F.3d 55, 61 (2d Cir.
2003); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003).

IT IS FURTHER ORDERED that no order to show cause shall issue as to
respondent, because the instant petition is successive under 28 U.S.C. § 2244(b)(3)(A).
IT IS FURTHER ORDERED that petitioner’s application for a writ of habeas
corpus is DENIED, without prejudice.
IT IS FURTHER ORDERED that the Clerk shall TRANSFER the instant
petition to the United States Court of Appeals for the Eighth Circuit pursuant to 28
U.S.C. § 1631.
Dated this 14th day of January , 2013.

/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE