Kelvin Shelby Malone v. Daniel Vasquez, Warden, San Quentin State Prison Jeremiah W. (Jay) Nixon, Attorney General, State of Missouri

167 F.3d 1186, 1999 U.S. App. LEXIS 571, 1999 WL 30652

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 13, 1999
• Docket: 99-1085
• Status: Published

Opinions

MURPHY, Circuit Judge.

Kelvin Malone’s initial application for federal habeas relief in Missouri was denied by the district court on January 17, 1996, and that denial was affirmed by this court. Malone v. Vasquez, 138 F.3d 711 (8th Cir.1998), reh’g and reh’g en banc denied, (May 11, 1998) and cert. denied, — U.S. -, 119 S.Ct. 384, 142 L.Ed.2d 317 (1998). On January 8, 1999, Malone filed Petitioner’s Motion to Reopen and Emergency Motion for Stay of Execution in the district court.¹ It was denied on the same day. Petitioner filed a motion for reconsideration, which the district court denied on January 11, and he filed this appeal on January 12. The state of Missouri has filed suggestions in opposition to the petitioner’s motion.

Since we believe that the motion to reopen filed in the district court by petitioner on January 8 is a successive petition, we dismiss it and deny the request for stay of execution in order to file a successive petition. 28 U.S.C. § 2244(b)(1). We see no grounds on which a motion for leave to file a successive application could be granted.

1 . Since Malone styled his motion as one to reopen his prior habeas case, he used the caption of that case in his filing even though he is now in the custody of Michael Bowersox, Superintendent of the Potosí Correctional Center.