McElroy v. Cassady

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the instant application for writ of habeas corpus is DENIED, without prejudice, because petitioner did not obtain permission from the court of appeals to bring the motion in this Court. See 28 U.S.C. § 2244. IT IS FURTHER ORDERED that the Clerk shall TRANSFER the instant motion to the United States Court of Appeals for the Eighth Circuit pursuant to 28 U.S.C. § 1631. Signed by Magistrate Judge Shirley Padmore Mensah on 5/19/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RALPH MCELROY,
Petitioner,
v.
JAY CASSADY,
Respondent.

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No. 4:16CV371 SPM

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s application for writ of habeas corpus brought
pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 3). In the instant motion,
petitioner claims that the new Supreme Court cases of Miller v. Alabama, 132 S.Ct. 2455 (2012)
and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) apply to further reduce his conviction and
sentence under Missouri law.
The instant application for writ of habeas corpus is a Asecond or successive@ application
within the meaning of 28 U.S.C. § 2244 but has not been certified by the United States Court of
Appeals for the Eighth Circuit as required by the AEDPA. As a result, the instant case will be
transferred to the United States Court of Appeals in order to request the required certification.
Petitioner was convicted, after a jury trial, of first-degree murder and armed criminal action
in St. Louis City Court on February 23, 1989. On June 16, 1989, petitioner was sentenced to life
imprisonment without the eligibility of probation or parole. See State v. McElroy, No. 871-0087
(22nd Judicial Circuit, St. Louis City). Petitioner’s sentence was affirmed on direct appeal. See
State v. McElroy, Nos. ED56907, ED60450, 838 S.W.2d 43 (Mo.Ct.App. Aug. 4, 1992).
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After the holdings in Miller and Montgomery, the Missouri Supreme Court reduced
petitioner’s sentence to a parole-eligible sentence, after service of twenty-five years’
imprisonment, pursuant to a uniform order issued on March 15, 2016.
Movant filed his first federal petition for writ of habeas corpus in this Court on April 2,
1996. See McElroy v. Bowersox, No. 4:96CV625 CDP (E.D.Mo. 1998). The Court denied and
dismissed petitioner’s application for writ of habeas corpus on March 23, 1998. Id. Petitioner was
denied a certificate of appealability by the Eighth Circuit Court of Appeals on December 1, 1998.
See McElroy v. Bowersox, No. 98-1975EMSL (8th Cir. 1998).
Pursuant to 28 U.S.C. § 2244, petitioner must obtain leave from the United States Court of
Appeals for the Eighth Circuit before he can bring new claims for federal relief in this Court. 28
U.S.C. § 2244(b)(3)(A). When a second or successive habeas petition is filed in a district court
without the authorization of the court of appeals, the court should dismiss it, or, in its discretion,
transfer the motion to the appellate court so long as it is in the interests of justice. Boyd v. U.S.,
304 F.3d 813, 814 (8th Cir. 2002).
As it appears that movant has a tenable claim for relief under Miller and Montgomery, the
Court finds that it is in the interest of justice to transfer movant’s petition to the Eighth Circuit
Court of Appeals as a request to file a second or successive § 2254 motion.
Accordingly,
IT IS HEREBY ORDERED that the instant application for writ of habeas corpus is
DENIED, without prejudice, because petitioner did not obtain permission from the court of
appeals to bring the motion in this Court. See 28 U.S.C. § 2244.

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IT IS FURTHER ORDERED that the Clerk shall TRANSFER the instant motion to the
United States Court of Appeals for the Eighth Circuit pursuant to 28 U.S.C. § 1631.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 19th day of May, 2016.

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