Smith v. Minor

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's application for writ of habeas corpus is DENIED and DISMISSED as SUCCESSIVE.IT IS FURTHER ORDERED that no certificate of appealability shall issue. Signed by District Judge Jean C. Hamilton on 04/08/2015. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JONATHAN SMITH,
Petitioner,
v.
DEAN MINOR,
Respondent.

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No. 4:15CV500 DDN

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 petition is successive and shall be summarily denied and
dismissed.
Rule 4 of the Rules Governing ' 2254 Cases in the United States District Courts provides
that a district court shall summarily dismiss a ' 2254 petition if it plainly appears that the petitioner
is not entitled to relief.
On November 20, 2012, petitioner pled guilty to unlawful possession of a firearm,
unlawful use of drug paraphernalia, and possession of heroin. See Smith v. Missouri, No.
1322-CC00095 (22nd Judicial Cir., Order dated September 9, 2013).

The court sentenced

petitioner to two concurrent terms of five years’ imprisonment. Petitioner did not file a direct
appeal. Petitioner filed a motion for post-conviction relief, in which he alleged that trial counsel
was ineffective for failing to file a motion to suppress evidence found in his locked safe. The
motion court denied relief on September 9, 2013, finding that petitioner consented to the search
and that he waived any Fourth Amendment claim when he pled guilty. Petitioner did not appeal.

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However, petitioner filed a petition for writ of habeas corpus with the Missouri Supreme Court on
August 12, 2013, which was denied on October 29, 2013. See Ex. Rel. Smith v. Missouri, No.
SC93611 (Mo. 2013). Petitioner filed a second petition with the Missouri Supreme Court on
November 25, 2014. This petition was also denied, on February 3, 2015. See Ex. Rel Smith-El v.
Norman, No. SC94621 (Mo. 2015).
On October 2, 2013, petitioner filed a petition for writ of habeas corpus in this Court which
was denied and dismissed as non-cognizable.

See Smith v. Minor, No.4:13CV1987 DDN

(E.D.Mo. October 10, 2013). Petitioner did not appeal of the denial of his application for writ.
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.
Accordingly,
IT IS HEREBY ORDERED that petitioner=s application for writ of habeas corpus is
DENIED and DISMISSED as SUCCESSIVE.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
Dated this 8th day of April, 2015.

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

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