McKeller v. Bowersox

Filing 5

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that petitioners motion for leave to proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that petitioners petition for writ of habeas corpus is DISMISSED. 2 Signed by District Judge Jean C. Hamilton on 11/10/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RANDY LAMONT MCKELLAR,
Petitioner,
v.
MICHAEL S. BOWERSOX,
Respondent,

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No. 4:14CV1818 JCH

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s successive petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Because petitioner does not have authorization from the
Court of Appeals to file the petition, the Court will summarily dismiss it. See 28 U.S.C. § 2254,
Rule 4.
Petitioner was convicted of murder and armed criminal action, and the state court
sentenced him to life without the possibility of parole and thirty years. Petitioner filed a petition
for writ of habeas corpus under 28 U.S.C. § 2254 in April 2011, which the Court denied on the
merits on November 21, 2013. McKeller v. Bowersox, 4:11CV737 JCH (E.D. Mo.). Petitioner
filed a second petition for writ of habeas corpus challenging the judgment and sentence on
February 21, 2014, which the Court summarily dismissed as successive. McKellar v. Bowersox,
4:14CV329 JCH (E.D. Mo.).
Petitioner now brings a third petition challenging the sentence. Currently pending before
the Court of Appeals for the Eighth Circuit is petitioner’s application to file a successive petition.
McKellar v. Bowersox, No. 14-2790 (8th Cir.).

This Court is required to dismiss any claim presented in a successive petition unless the
Court of Appeals has first authorized the filing of the petition. See 28 U.S.C. § 2244(b).
Because the Court of Appeals has not granted petitioner’s application, the Court will dismiss this
petition without further proceedings.
Finally, petitioner has failed to demonstrate that jurists of reason would find it debatable
whether the petition is successive. Thus, the Court will not issue a certificate of appealability.
28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in forma
pauperis is GRANTED.
IT IS FURTHER ORDERED that petitioner’s petition for writ of habeas corpus is
DISMISSED.
Dated this 10th Day of November, 2014.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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