Jones v. Bowersox

Filing 4

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Petitioner Tony Jones Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By Person In State Custody (ECF No. 1) is DISMISSED, without prejudice. IT IS FURTHER ORDERED that Petitioners Motion To Stay And To Hold In Abeyance The Petition For Writ Of Habeas Corpus (ECF No. 3 ) is DENIED as moot. Signed by District Judge Henry Edward Autrey on 9/28/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TONY JONES,
Petitioner,
v.
MICHAEL BOWERSOX,
Respondent.

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No. 4:16CV1364 JMB

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s Motion to Stay And To Hold In Abeyance
The Petition For Writ Of Habeas Corpus (ECF No. 3) as well as the Court’s consideration, sua
sponte, of its jurisdiction to consider Petitioner’s application for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. (ECF No. 1)
Petitioner has filed this application for a writ of habeas corpus arguing that his sentence is
unconstitutional under Miller v. Alabama, 132 S. Ct. 2455 (2012), and that the rule in Miller is
retroactively applicable to Jones under Montgomery v. Louisiana, 136 S. Ct. 718 (2016). (See
ECF No. 1 at 9-13)
This petition, however, is successive, as Petitioner admits, because he filed an application
for a writ of habeas corpus challenging his state conviction back in 1998. (See ECF No. 3 at 5-6)
(conceding that Petitioner’s current habeas petition is a “second petition”) Petitioner has also
apparently filed a request for authorization to file a second or successive habeas petition from the
Eighth Circuit. (See id.; see also Jones v. Bowersox, No. 16-3373) Because Petitioner has filed
a request for authorization with the Eighth Circuit, Petitioner seeks to hold his current habeas
petition in abeyance until the Eighth Circuit rules upon that authorization. (ECF No. 3)

Petitioner’s problem, however, is that § 2244(b) explicitly requires him to obtain the
permission of the Eighth Circuit Court of Appeals before filing this petition in the district court.
See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this
section is filed in the district court, the applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider the application.”).
The requirement that prisoners obtain authorization from the circuit court before filing a
second or successive petition in the district court is jurisdictional. See Burton v. Stewart, 127 S.
Ct. 793, 796 (2007) (per curiam). Therefore, because the petitioner has not received permission
from the court of appeals, this court lacks subject matter jurisdiction over Petitioner’s
application, and has no discretion to stay the matter. Instead, under Fed. R. Civ. P. 12(h)(3), the
Court “must dismiss the action.”
Accordingly,
IT IS HEREBY ORDERED that Petitioner Tony Jones’ Petition Under 28 U.S.C.
§ 2254 For Writ Of Habeas Corpus By Person In State Custody (ECF No. 1) is DISMISSED,
without prejudice.
IT IS FURTHER ORDERED that Petitioner’s Motion To Stay And To Hold In
Abeyance The Petition For Writ Of Habeas Corpus (ECF No. 3) is DENIED as moot.
Dated this 28th day of September, 2016

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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