Ewing v. Steele

Filing 6

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in forma pauperis (Docket No. 2 ) is GRANTED.IT IS FURTHER ORDERED that petitioner's petition for writ of habeas corpus (Docket No. [ 1]) is DISMISSED. A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that petitioner's motion to present self-care examination (Docket No. 4 ) is DENIED as moot. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge E. Richard Webber on 10/23/17. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BYRON EWING,
Petitioner,
v.
TROY STEELE,
Respondent.

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No. 4:17-cv-2446-NCC

MEMORANDUM AND ORDER
This matter is before the Court on Missouri state prisoner Byron Ewing’s motion for
leave to proceed in forma pauperis (Docket No. 2), and his petition for writ of habeas corpus,
filed pursuant to 28 U.S.C. § 2254 (Docket No. 1). The Court will grant petitioner’s motion for
leave to proceed in forma pauperis, and will dismiss the petition for lack of jurisdiction.
On May 22, 2009, following a jury trial, petitioner was found guilty of first degree
statutory rape, first degree child molestation, and sexual misconduct involving a child. State v.
Byron Ewing, Case No. 07SL-CR05480-01 (21st Jud. Cir. Jul. 2, 2009). On July 2, 2009, he was
sentenced as a prior and persistent offender to life in prison without the possibility of probation
or parole, and terms of fifteen and four years, all sentences to run concurrently. Id. He is
presently incarcerated in the Eastern Reception, Diagnostic and Correctional Center in Bonne
Terre, Missouri.
In September of 2013, petitioner filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. See Ewing v. Steele, Case No. 4:13-cv-1757-NAB (E.D. Mo. Sept. 28, 2016).
Therein, petitioner challenged the above 2009 state court judgment. In the instant petition,
petitioner states that he challenges his 2009 convictions for first degree statutory rape, first

degree child molestation, and sexual misconduct involving a child. It is clear that, in this
proceeding, petitioner is attacking the same judgment he previously challenged.
In the instant petition, for his single ground for relief, petitioner claims that his appellate
counsel was ineffective for failing to challenge the sufficiency of the evidence. Petitioner
claims, inter alia, that counsel should have argued that, because the victim’s safe-care
examination failed to document vaginal tears or lacerations, there were no findings of physical or
sexual abuse. Petitioner did not raise this claim in his first habeas petition.
Petitioner does not indicate, nor is it apparent, that the factual predicate for his claim
could not have been previously discovered, nor does he attempt to explain why he failed to raise
the claim in his first petition. Regardless of why petitioner failed to present his current claim in
his first petition, it is clear that the instant petition is a second, successive petition. Section
2244(b)(3)(A) requires that “[b]efore 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.” Petitioner has failed to do so;
consequently, this court lacks jurisdiction over the instant petition. See Burton v. Stewart, 549
U.S. 147, 154 (2007) (per curiam); Cox v. Norris, 167 F.3d 1211, 1212 (8th Cir. 1999). The
petition will therefore be dismissed.
The Court has considered whether to issue a certificate of appealability. To do so, the
Court must find a substantial showing of the denial of a federal constitutional right.

See

Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir.1997). A substantial showing is a showing that
issues are debatable among reasonable jurists, a Court could resolve the issues differently, or the
issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing
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Flieger v. Delo, 16 F.3d 878, 882–83 (8th Cir. 1994)). Because petitioner has made no such
showing, the Court will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in forma
pauperis (Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that petitioner’s petition for writ of habeas corpus
(Docket No. 1) is DISMISSED. A separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that petitioner’s motion to present self-care examination
(Docket No. 4) is DENIED as moot.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
Dated this 23rd day of October, 2017.

E. RICHARD WEBBER
UNITED STATES DISTRICT JUDGE

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