Dietz v. Buckner

Filing 2

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that petitioner's application for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 is DENIED AND DISMISSED AS SUCCESSIVE. See 28 U.S.C. § 2244(b). A separate Order of Dismissal will be entered herewith. IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability. Signed by Sr. District Judge Rodney W. Sippel on 6/5/2024. (NEP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LARRY DIETZ,
Petitioner,
v.
MICHELE BUCKNER,
Respondent.

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No. 4:24-CV-00780 RWS

MEMORANDUM AND ORDER
This matter is before the Court upon review of self-represented petitioner Larry Dietz’s
application for habeas corpus brought pursuant to 28 U.S.C. § 2254. As explained below, the Court
finds the petition is an unauthorized successive petition and will therefore deny and dismiss it.
Background
Petitioner is incarcerated at South Central Correctional Center (SCCC) pursuant to the
judgment of conviction entered in the matter State v. Dietz, No. 09SL-CR03464-01 (21st Jud. Cir.
St. Louis County Court). In that case, a jury convicted petitioner of forcible sodomy, and on May
19, 2011, the Missouri state court sentenced him to serve 30 years in prison. Id.
On or about March 2, 2015, petitioner filed an application for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in this Court to challenge that same judgment of conviction. See
Dietz v. Russell, No. 4:15-CV-00392 SPM (E.D. Mo. 2018) (hereinafter referred to as “Dietz I”).
On January 5, 2018, the Court denied the petition on its merits. Id. Petitioner did not appeal.
Petitioner filed the instant petition on or about June 3, 2024. He asserts claims of trial court
error in State v. Dietz. He also avers he sought relief in the Circuit Court of Texas County, the
Missouri Court of Appeals and the Missouri Supreme Court after the judgment entered against

him in Dietz I. See, e.g., Dietz v. Norman, No. 19TE-CC00169 (25th Jud. Cir., Texas County Court)
(petitioner’s application for writ of habeas corpus denied on May 16, 2019); Dietz v. Norman, No.
SD36192 (Mo. Ct. App. 2019) (petitioner’s application for writ of habeas corpus denied on August
16, 2019); Dietz v. Norman, No. SD36614 (Mo. Ct. App. 2020) (petitioner’s application for writ
of habeas corpus denied on April 29, 2020); Dietz v. Norman, No. SD38245 (Mo. Ct. App. 2023)
(petitioner’s application for writ of habeas corpus denied on October 5, 2023); Dietz v. Norman,
No. SD38134 (Mo. Ct. App. 2023) (petitioner’s application for writ of habeas corpus still
pending); Dietz v. Buckner, No. SC98748 (2023) (petitioner’s application for writ of habeas corpus
denied on November 3, 2020); Dietz v. Buckner, No. SC100507 (2024) (petitioner’s application
for writ of habeas corpus denied on April 2, 2024).
Petitioner states that the instant petition is timely because he is in possession of newly
discovered evidence. However, petitioner’s arguments in the instant petition mirror the arguments
he made in Dietz I.
Discussion
Petitioner asserts federal bases for relief from the judgment of conviction in State v. Dietz,
the same judgment of conviction he challenged in Dietz I. As noted above, petitioner’s arguments
mirror those made in his prior petition in this Court.
Dietz I was an adjudication on the merits that renders future petitions under § 2254
challenging the same judgment “second or successive” petitions under 28 U.S.C. § 2244. The
Court finds the instant petition is a second or successive petition.
The Antiterrorism and Effective Death Penalty Act of 1996 imposes a “stringent set of
procedures” that a state prisoner “must follow if he wishes to file a second or successive habeas
corpus application challenging that custody.” Burton v. Stewart, 549 U.S. 147, 152 (2007). For

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claims in a successive application that were not presented in a prior application, “the applicant
shall move in the appropriate court of appeals for an order authorizing the district court to consider
the application.” 28 U.S.C. § 2244(b)(3)(A). See also Boyd v. United States, 304 F.3d 813, 814
(8th Cir. 2002) (stating that authorization by the Eighth Circuit Court of Appeals is a “prerequisite
under 28 U.S.C. § 2244(b)(3)…to the filing of a second or successive habeas petition”). A claim
presented in a “successive habeas corpus application under section 2254 that was presented in a
prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1).
To the extent petitioner seeks to relitigate claims he brought in Dietz I, those claims must
be dismissed pursuant to 28 U.S.C. § 2244(b)(1). To the extent petitioner seeks to bring new claims
for habeas relief, he must first obtain leave from the United States Court of Appeals for the Eighth
Circuit before bringing those claims in this Court. See 28 U.S.C. § 2244(b)(3)(A). Petitioner does
not aver, nor does it appear, that the United States Court of Appeals for the Eighth Circuit has
granted him leave to file a successive habeas petition. As a result, the petition must be denied and
dismissed as successive.
The Court has considered whether to issue a certificate of appealability. See 28 U.S.C. §
2253(c)(1)(A) (“Unless a circuit justice or judge issues a certificate of appealability, an appeal may
not be taken to the court of appeals from…the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a State court”). To do so, the Court
must find a substantial showing of the denial of a federal 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). Petitioner has made no such
showing, so the Court will not issue a certificate of appealability.

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Accordingly,
IT IS HEREBY ORDERED that petitioner’s application for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254 is DENIED AND DISMISSED AS SUCCESSIVE. See
28 U.S.C. § 2244(b). A separate Order of Dismissal will be entered herewith.
IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability.
Dated this 5th day of June, 2024.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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