Clark v. State of Missouri

Filing 6

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioners motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that petitioners motion for leave to file a brief in excess length [Doc. #3] is GRANTED.IT IS FURTHER ORDERED that petitioners application for writ of habeascorpus pursuant to 28 U.S.C. § 2254 is DISMISSED without prejudice. IT IS FURTHER ORDERED petitioners motion for appointment of counsel [Doc. #4] is DENIED AS MOOT. IT IS FURTHER ORDERED th at petitioners motion to amend his motion to recall the mandate, filed with the Missouri Court of Appeals on October 13, 2010 [Doc. #5] is DENIED as this Court is without jurisdiction to so order. IT IS FURTHER ORDERED that no certificate of appealability will issue.An Order of Dismissal will accompany this Memorandum and Order. 5 4 2 3 Signed by District Judge Jean C. Hamilton on 7/23/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RAPHAEL CLARK,
Petitioner,
v.
STATE OF MISSOURI,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:13CV623 JCH

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s application for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The Court will summarily dismiss the petition
because it is successive.
Petitioner was found guilty by a jury of capital murder. On April 6, 1984, the
St. Louis County Circuit Court sentenced petitioner to life without parole plus fifty
years’ imprisonment, to be served consecutively. Petitioner previously challenged
this judgment in the case of Clark v. Henman, 4:92CV140 JCH (E.D. Mo.). The
Court dismissed the case because the grounds raised in the petition were either noncognizable or procedurally barred. Following dismissal, the United States Court of
Appeals for the Eighth Circuit denied petitioner’s application for a certificate of
probable cause to appeal. Petitioner now seeks to challenge the same state court
judgment.

Rule 4 of the Rules Governing § 2254 Cases provides that a district court shall
summarily dismiss a § 2254 petition if it plainly appears that the petitioner is not
entitled to relief.
To the extent that petitioner seeks to relitigate claims that he brought in his
original petition, those claims must be dismissed 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. And the
AEDPA’s restriction on filing successive petitions is retroactively applicable to cases
that were filed before the AEDPA was enacted. See, e.g., Daniels v. United States,
254 F.3d 1180, 1188 (10th Cir. 2001). As a result, the petition will be summarily
dismissed.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that petitioner’s motion for leave to file a brief
in excess length [Doc. #3] is GRANTED.

-2-

IT IS FURTHER ORDERED that petitioner’s application for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is DISMISSED without prejudice.
IT IS FURTHER ORDERED petitioner’s motion for appointment of counsel
[Doc. #4] is DENIED AS MOOT.
IT IS FURTHER ORDERED that petitioner’s motion to amend his “motion
to recall the mandate,” filed with the Missouri Court of Appeals on October 13, 2010
[Doc. #5] is DENIED as this Court is without jurisdiction to so order.
IT IS FURTHER ORDERED that no certificate of appealability will issue.
An Order of Dismissal will accompany this Memorandum and Order.
Dated this 23rd day of July, 2013.

/s/Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

-3-