Williams v. Delo
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioner's petition for writ of habeas corpus is DISMISSED. Signed by District Judge John A. Ross on 2/4/13. (LAH)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ERNEST C. WILLIAMS,
PAUL K. DELO,
No. 4:13CV137 JAR
MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s “motion to vacate judgment and
stay proceedings.” On review of the pleadings and exhibits, the Court finds that this
is a successive petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and
the Court will dismiss this action without further proceedings.
On February 16, 1982, petitioner was convicted of capital murder by a jury. He
was sentenced to life imprisonment without eligibility for probation or parole for fifty
years. He is currently incarcerated in Potosi Correctional Center.
Petitioner filed his first federal petition for writ of habeas corpus pursuant to §
2254 on February 9, 1990. Williams v. Delo, 4:90CV239 ELF (E.D. Mo.). The Court
denied habeas relief with prejudice on March 16, 1992, and on March 4, 1993, the
Eighth Circuit Court of Appeals denied petitioner a certificate of probable cause. Id.
Petitioner now alleges that his postconviction-relief counsel was ineffective
based on the United States Supreme Court’s recent case Martinez v. Ryan, 132 S. Ct.
In Martinez, the Court held that “ineffective assistance in an
initial-review collateral proceeding on a claim of ineffective assistance at trial may
provide cause for a procedural default in a federal habeas proceeding.” Id. at 1316.
Petitioner believes that, because most of the claims in his original § 2254 petition were
dismissed as defaulted, his new claim for ineffective assistance should excuse the
default and revive his claims, therefore providing him with a new means for federal
Petitioner has labeled the instant motion as a Rule 60(b) motion, and he
intended to file it in the 1990 action. However, applications by prisoners that assert
a federal basis for relief from a state court judgment of conviction under § 2244(b)
must comply with the second or successive restrictions. See Gonzalez v. Crosby, 545
U.S. 524, 530 (2005). Thus, if the motion’s factual predicate deals primarily with the
constitutionality of the underlying state conviction, it should be construed as a second
or successive habeas petition. See Peach v. United States, 468 F.3d 1269, 1272 (10th
Cir. 2006); Brian R. Means, Federal Habeas Manual § 11:42 (2012). Because the
factual predicate of the instant motion deals with the validity of petitioner’s state
conviction, the Court construes the motion as a successive petition for writ of habeas
To the extent that petitioner seeks to relitigate claims that he brought in his
original petition, those claims must 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 must
obtain leave from the United States Court of Appeals for the Eighth Circuit before he
can bring those claims in this Court. 28 U.S.C. § 2244(b)(3)(A). Petitioner has not
been granted leave to file a successive habeas petition in this Court. As a result, the
petition shall be dismissed.
IT IS HEREBY ORDERED that petitioner’s petition for writ of habeas corpus
Dated this 4th day of February, 2013.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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