# McAfee v. Missouri, State of

> District Court, E.D. Missouri · February 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10238330

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** February 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10238330

## How later opinions describe it (automated extraction)

- stating that “it is well settled that federal courts have no superintending control over and are without authority to issue writs of mandamus to direct state courts or their judicial officers in the performance of their duties”
- 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”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

MICHAEL MCAFEE, )
)
Petitioner, )
)
v. ) No. 1:22-cv-00161-SRW
)
STATE OF MISSOURI, et al., )
)
Respondents. )

MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Michael McAfee’s petition for writ of
mandamus. (Docket No. 1). For the reasons discussed below, the petition will be denied, and this
action dismissed, for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
Background
Petitioner is a self-represented litigant who is currently incarcerated at the Southeast
Correctional Center in Charleston, Missouri. On November 4, 2016, a jury convicted him of first-
degree murder and armed criminal action. State of Missouri v. McAfee, No. 15SL-CR02152-01
(21st Jud. Cir., St. Louis County).1 Petitioner was sentenced on December 8, 2016 to life
imprisonment without the possibility of parole on the first-degree murder charge, and life
imprisonment on the armed criminal action charge. On December 19, 2016, he filed a notice of
appeal, arguing that witnesses improperly testified to the victim’s out-of-court statements, and that
a mistrial should have been declared after he was threatened during trial by the victim’s relatives.

1 Petitioner’s underlying state court cases were reviewed on Case.net, Missouri’s online case management system.
The Court takes judicial notice of these public records. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (explaining
that district court may take judicial notice of public state records); and Stutzka v. McCarville, 420 F.3d 757, 760 n.2
(8th Cir. 2005) (stating that courts “may take judicial notice of judicial opinions and public records”).
On February 6, 2018, the Missouri Court of Appeals affirmed the judgment of the circuit
court. State of Missouri v. McAfee, No. ED105129 (Mo. App. 2018). Petitioner’s subsequent
application to transfer his case to the Missouri Supreme Court was denied on May 22, 2018. State
of Missouri v. McAfee, No. SC97061 (Mo. 2018).

On August 7, 2018, petitioner filed a timely motion to vacate, set aside, or correct judgment
or sentence, pursuant to Missouri Supreme Court Rule 29.15. McAfee v. State of Missouri, No.
18SL-CC02954 (21st Jud. Cir., St. Louis County). In his motion, he alleged the ineffectiveness of
both trial and appellate counsel on numerous grounds, including lack of due diligence, disregarding
his requests, refusing to call certain witnesses, and failure to present evidence of alleged police
brutality during his interrogation by police. Counsel was appointed, and an amended motion filed,
asserting a single ground of relief regarding trial counsel’s failure to present evidence that
fingerprints found at the crime scene did not match petitioner’s prints. Following an evidentiary
hearing, the circuit court denied petitioner’s Rule 29.15 motion on April 15, 2020.
Petitioner appealed the denial of his Rule 29.15 motion to the Missouri Court of Appeals.

The Court of Appeals affirmed the judgment of the circuit court on April 20, 2021. McAfee v. State
of Missouri, No. ED109000 (Mo. App. 2021). The mandate was issued on May 13, 2021.
On June 11, 2021, petitioner filed a timely petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 in the United States District Court for the Eastern District of Missouri. McAfee
v. Stange, No. 1:21-cv-90-SRC (E.D. Mo.). The petition presented ten grounds for relief. Six
grounds related to the trial court’s decision to admit testimony regarding out-of-court statements,
two grounds related to the trial court’s decision not to declare a mistrial after two threatening
outbursts were made toward petitioner in the jury’s presence, one ground referred to the trial
court’s decision to allow the introduction of two notes found in petitioner’s car, and one ground
argued that petitioner’s trial counsel was ineffective for failing to introduce evidence that a crime
scene fingerprint did not belong to petitioner. On November 23, 2021, the district court denied
petitioner’s petition for writ of habeas corpus, dismissed the petition with prejudice, and denied a
certificate of appealability.

Petitioner appealed the dismissal of his 28 U.S.C. § 2254 petition to the United States Court
of Appeals for the Eighth Circuit. On April 26, 2022, the Court of Appeals denied his application
for a certificate of appealability and dismissed his appeal. McAfee v. Stange, No. 22-1023 (8th Cir.
2022). Petitioner’s subsequent petition for rehearing by panel was denied on June 16, 2022. On
June 24, 2022, petitioner filed a motion for appointment of counsel in the Court of Appeals.
Because his motion for rehearing had already been denied, no action was taken on the motion.
On November 28, 2022, petitioner filed the instant action in this Court, which he has styled
as a “Permanent Writ of Mandamus and Injunction.” (Docket No. 1).
The Petition
Petitioner’s twenty-eight page petition for writ of mandamus is typewritten on a boilerplate

form titled “Form No. 16. Summary For Original Remedial Writs.” The form has not been
provided by this Court. The petition is directed against the State of Missouri, St. Louis County
Prosecutor Wesley Bell, and Assistant Attorney General Patrick J. Logan. (Docket No. 1 at 1). In
the section of the form for providing the “nature of the underlying action,” petitioner states that he
is seeking a permanent writ of mandamus and an injunction “barring any appeal from order to
show cause why conviction and sentence [should] not…be vacated with prejudice and immediate
release be granted.” (Docket No. 1 at 2). With regard to the action being challenged, petitioner
asserts that there has been “callous and reckless indifference [to his] federally guaranteed and
protected rights to due process,” and that “false and perjured testimony based on a forced
confession and beating” has been used against him.
As to the “relief” section of the form petition, petitioner seeks “release from unlawful
imprisonment with prejudice” and “seeks emotional and mental injuries as well as any other

damages a public jury may award.” Petitioner ends the form complaint by noting that his motion
for appointment of counsel in McAfee v. Stange, No. 22-1023 (8th Cir. 2022) has not been ruled
upon.
Attached to the form petition is a typewritten document setting forth petitioner’s grounds
for relief, as well as his legal arguments. This document begins with petitioner asserting that the
Court has jurisdiction under 18 U.S.C. § 242,2 28 U.S.C. § 1345,3 28 U.S.C. § 1348,4 and 28
U.S.C. § 1441.5 (Docket No. 1 at 3). None of these statutes actually provide a jurisdictional basis
for petitioner’s mandamus action. Regardless, petitioner declares that he is entitled to a “permanent
writ of mandamus and injunction with [an] order” requiring respondents to “show just cause why
relief should not be granted within 30 days.” He further alleges that the “callous and reckless

2 18 U.S.C. § 242 is a federal criminal statute making it illegal for a person acting under color of law to willfully
deprive a person of their rights under the constitution or federal law. This statute does not provide a private right of
action, and therefore, cannot be used as a jurisdictional basis. See Brown v. Express Scripts, 2018 WL 1295482, at *2
(E.D. Mo. 2018) (dismissing claim brought under 18 U.S.C. § 242 because plaintiff had no private right of action).
3 28 U.S.C. § 1345 governs actions in which the United States is a plaintiff, and provides that “the district courts shall
have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency
or officer thereof expressly authorized to sue by Act of Congress.” The Court notes that the United States is not the
plaintiff in this action, and that this section does not provide a jurisdictional basis.
4 28 U.S.C. § 1348 governs actions in which a banking association is a party, and provides that “[t]he district courts
shall have original jurisdiction of any civil action commenced by the United States, or by direction of any officer
thereof, against any national banking association, any civil action to wind up the affairs of any such association, and
any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12,
to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by such chapter.”
The Court notes that this case does not implicate an action in which a banking association is a party. Thus, this section
does not provide a jurisdictional basis.
5 28 U.S.C. § 1441 governs the removal of civil actions, and provides that “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and division embracing the place where such action
is pending.” The Court notes that the instant action is not a removal action, and therefore, this statute does not provide
a jurisdictional basis.
indifference” of respondents has resulted in the violation of his right to due process. More
particularly, petitioner accuses respondents of using false evidence, of forcing his “confession on
the threat of death,” and of allowing county police officers to perjure themselves.
Petitioner next lists five separate grounds for relief, supported by citations to caselaw. In

his first ground, he asserts that the State of Missouri relied “on false and perjured testimony” with
regard to his confession being given freely and voluntarily. (Docket No. 1 at 3-4). Specifically,
petitioner claims that he was threatened with physical injuries and death if he “did not confess to
a crime,” even though investigating officers “knew there were no [eyewitnesses] to place [him] at
the crime scene on the time or date in question.” (Docket No. 1 at 4).
In his second ground for relief, petitioner states that his Miranda rights were violated when
his request to end his interview was ignored. (Docket No. 1 at 4-5). He explains that officers
“initiated [a] custodial interrogation and continued to question [him] after accusing…him of
murder,” and after he had invoked his right “to remain silent and end the interrogation until counsel
was appointed.” (Docket No. 1 at 5).

In his third ground for relief, petitioner alleges prosecutorial misconduct in the “intentional
suppression of exculpatory evidence.” By way of support, he asserts that the prosecutor
“suppressed the eyewitness testimony of Cheryl Altrogge,” who was “the only witness [that]
actually witnessed anyone going to the second floor…at the time and date of the murder.” When
Altrogge was shown a photo array, however, “she clearly stated that she could not truthfully testify
that petitioner was the person she had seen.” (Docket No. 1 at 11). Meanwhile, petitioner claims
that a second witness, identified as “Mr. Newman,” saw only a black male individual “in the lobby
of the public building,” and that Newman witnessed no criminal act. In addition to these witnesses,
petitioner also asserts that his phone records show that he was in Marion, Arkansas at the time of
the murder, hundreds of miles away, but that the prosecution never put those phone records into
evidence.
In his fourth ground for relief, petitioner contends that both the “trial court and the Missouri
Court of Appeals clearly violated [his] rights to due process” because “confessions are clearly

inadmissible as evidence.”
Finally, in his fifth ground for relief, petitioner alleges that his counsel was ineffective in
failing to enter video evidence purportedly showing “petitioner’s beating by St. Louis County
police officers,” and failing to investigate injuries he suffered on the date of extradition. (Docket
No. 1 at 12). Rather than trial strategy, petitioner attributes the failure to his counsel’s “indolence
or incompetence.”
Based on the above, petitioner states that the “deception” in his case is “obvious,” and that
the respondent’s “repeated reliance on false and perjured testimony caused this honorable court to
overlook this injustice” in the petition for writ of habeas corpus he filed under 28 U.S.C. § 2254.
According to petitioner, his exhibits and evidence demonstrate that he is entitled to relief, and that

“as officers of the court,” their “public duties were clear.” (Docket No. 1 at 13).
Intermixed with his grounds for relief are various exhibits that have been marked by
petitioner with both letters and numbers, and which are referenced in his arguments. The Court
has reviewed these exhibits in the order in which they were received, noting that some exhibits
have been marked twice with the same designation.
Exhibit A is a single page of a transcript from petitioner’s custodial interrogation. (Docket
No. 1 at 6). Exhibits 2A and 2B are two additional transcript pages from his custodial interrogation,
in which petitioner states that he requested an end to the interview. (Docket No. 1 at 7-8). Exhibit
2 is the judgment of the United States Court of Appeals for the Eighth Circuit in Case Number 22-
1023, denying petitioner a certificate of appealability and dismissing the appeal of the denial of
his petition for writ of habeas corpus under 28 U.S.C. § 2254. (Docket No. 1 at 15). Exhibit 1(A)
is the motion to suppress statements filed in petitioner’s criminal case. (Docket No. 1 at 16-17).
Petitioner’s second Exhibit A consists of a single page from the state court’s denial of his Missouri

Supreme Court Rule 29.15 motion. (Docket No. 1 at 18). Exhibits B and C are letters to petitioner
from the Missouri State Public Defender System. (Docket No. 1 at 19-20). Exhibit D is a copy of
the State of Missouri’s motion to compel disclosure of a CD “containing a portion of a video made
by the defendant and edited by him,” which “is incomplete and…only a few seconds of a much
longer recording.” (Docket No. 1 at 21). Exhibit 4 consists of portions of a police report. (Docket
No. 1 at 23-25). Finally, Exhibit 6(A) is petitioner’s motion to suppress identification, which was
filed in his criminal case. (Docket No. 1 at 26-27).
On January 9, 2023, the Court received additional exhibits from petitioner, some of which
had already been submitted. (Docket No. 4). Those exhibits consisted of petitioner’s motion to
suppress statements in his criminal case; a single page from an unidentified legal document signed

by attorney Portia Kayser, which is apparently seeking a response from petitioner; three pages
from the transcript of petitioner’s interrogation; and petitioner’s motion for discovery in his
criminal case.
On January 25, 2023, petitioner submitted two more exhibits to the Court.6 (Docket No.
5). These exhibits consisted of affidavits from Yolanda Lawrence and Clarence Lawrence, both
relatives of petitioner living in Arizona. The affidavits are identical, and state that each affiant
observed scars, swelling, and injuries to petitioner when they visited him by video. According to

6 The Court notes that a total of four documents were submitted as exhibits, with petitioner producing two affidavits,
and two copies of those affidavits.
each affiant, two law enforcement officers beat petitioner, and then “conspired to escape
accountability.”
Standard of Review
Subject matter jurisdiction refers to a court’s power to decide a certain class of cases.
LeMay v. U.S. Postal Serv., 450 F.3d 797, 799 (8th Cir. 2006). “Federal courts are not courts of

general jurisdiction; they have only the power that is authorized by Article III of the Constitution
and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist.,
475 U.S. 534, 541 (1986). See also Gunn v. Minton, 568 U.S. 251, 256 (2013) (“Federal courts are
courts of limited jurisdiction, possessing only that power authorized by Constitution and statute”).
The presence of subject matter jurisdiction is a threshold requirement that must be assured in every
federal case. Kronholm v. Fed. Deposit Ins. Corp., 915 F.2d 1171, 1174 (8th Cir. 1990). See also
Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987) (“The threshold requirement in every
federal case is jurisdiction and we have admonished the district court to be attentive to a
satisfaction of jurisdictional requirements in all cases”). As such, the issue of subject matter

jurisdiction may be raised at any time, by any party or the court. Gray v. City of Valley Park, Mo.,
567 F.3d 976, 982 (8th Cir. 2009).
Discussion
Petitioner is a state prisoner who has filed a petition for writ of mandamus against the State
of Missouri, Prosecutor Wesley Bell, and Assistant Attorney General Patrick Logan, seeking to
have his conviction overturned, and to be released immediately from imprisonment. The Court
lacks jurisdiction to grant such a request. Therefore, for the reasons discussed below, the petition
will be denied, and this action dismissed without prejudice.
A. Writ of Mandamus
The issuance of a writ of mandamus is an “extraordinary remedy,” and “has traditionally
been used in the federal courts only to confine an inferior court to a lawful exercise of its prescribed
jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Will v. United

States, 389 U.S. 90, 95 (1967). “Only exceptional circumstances, amounting to a judicial
usurpation of power, will justify the invocation of this extraordinary remedy.” Allied Chemical
Corp. v. Daiflon, Inc., 499 U.S. 33, 35 (1980).
None of the proposed jurisdictional bases offered by petitioner – 18 U.S.C. § 242, 28
U.S.C. § 1345, 28 U.S.C. § 1348, and 28 U.S.C. § 1441 – have any relevance to a mandamus
action, or provide any authority for the Court to decide this case. Rather, the Court’s authority to
issue a writ of mandamus can come from either the All Writs Act, 28 U.S.C. § 1651, or the federal
mandamus statute, 28 U.S.C. § 1361. See Shaw v. Minnesota, No. 2022 WL 3128970, at *1 (D.
Minn. 2022). Here, neither statute provides a jurisdictional basis for petitioner’s request.
B. 28 U.S.C. § 1651

Pursuant to the All Writs Act, federal district courts “may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of
law.” See 28 U.S.C. § 1651(a); and Organization for Competitive Markets v. U.S. Dep’t of
Agriculture, 912 F.3d 455, 462 (8th Cir. 2018). Three conditions must be satisfied before a writ of
mandamus under 28 U.S.C. § 1651(a) may issue. Cheney v. U.S. Dist. Court for Dist. of Columbia,
542 U.S. 367, 380 (2004). First, the petitioner must have no other adequate means of attaining
relief. Id. Second, the petitioner has “the burden of showing that his right to issuance of the writ is
clear and indisputable.” Id. at 381. Finally, the issuing court must be satisfied that the writ is
appropriate under the circumstances, even if the first two prerequisites are met. Id.
In determining whether to issue a writ of mandamus under 28 U.S.C. § 1651, the Court
notes that the actions of a “state court are completely outside the field in which” a district court
can make judicial review and correction pursuant to 28 U.S.C. § 1651(a). See Middlebrooks v.
Thirteenth Judicial Dist. Cir. Court, Union Cty., 323 F.2d 485, 486 (8th Cir. 1963). That is, with

regard to state charges or proceedings, a federal district court does not have either existing or
potential jurisdiction to take action. Id. See also Veneri v. Circuit Court of Gasconade Cty., 528 F.
Supp. 496, 498 (E.D. Mo. 1981) (stating that “it is well settled that federal courts have no
superintending control over and are without authority to issue writs of mandamus to direct state
courts or their judicial officers in the performance of their duties”); and Rivera v. Minnesota, No.
2022 WL 4298745, at *1 (D. Minn. 2022) (explaining that “a writ to instruct a state court to
perform judicial functions is not a writ in aid of this Court’s proper jurisdiction”). If a state prisoner
wishes to directly attack “the validity of his sentence, the proper vehicle is a habeas corpus action.”
Otey v. Hopkins, 5 F.3d 1125, 1130 (8th Cir. 1993). See also Middlebrooks, 323 F.2d at 486
(explaining that “if an unconstitutional restraint were to be imposed upon petitioner in the state

proceedings, or as a result thereof, the question of the validity of such restraint could come within
our appellate jurisdiction through habeas corpus attack”).
In this case, petitioner names the State of Missouri, a prosecutor, and an assistant attorney
general as respondents, though he does not explicitly seek to compel them to do anything. Instead,
he makes a broad attack on his conviction and sentence in state court, focusing in large part on the
actions of his attorneys, and his contention that his confession was involuntary. Clearly, petitioner
believes that numerous courts and judges have made improper or incorrect rulings. Nonetheless,
as noted above, the actions of state courts and state judicial officers are outside the realm of 28
U.S.C. § 1651. In other words, the Court cannot use a writ of mandamus to invalidate petitioner’s
conviction, because the Court does not have either existing or potential jurisdiction over state
proceedings, and cannot direct a state judicial officer in the performance of his or her duties. Such
jurisdiction is necessary to issue a writ under the All Writs Act. Therefore, to the extent petitioner
seeks a writ of mandamus under § 1651, the petition must be denied.

C. 28 U.S.C. § 1361
Pursuant to 28 U.S.C. § 1361, a federal district court has original jurisdiction over “any
action in the nature of mandamus to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.” “Mandamus may issue under § 1361
against an officer of the United States only in extraordinary situations and when the plaintiff can
establish (1) a clear and indisputable right to the relief sought, (2) the state officer has a
nondiscretionary duty to honor that right, and (3) there is no other adequate remedy.” Mitchael v.
Colvin, 809 F.3d 1050, 1054 (8th Cir. 2016). Furthermore, “the duty owed to the plaintiff must be
ministerial and a positive command so plainly prescribed as to be free from doubt.” Keeny v. Sec’y
of the Army, 437 F.2d 1151, 1152 (8th Cir. 1971). A writ of mandamus cannot be used “to direct

the exercise of judgment or discretion in a particular way nor to direct the retraction or reversal of
action already taken in the exercise of either.” Id. at 1152-53.
Here, petitioner is not seeking a writ of mandamus “to compel an officer or employee of
the United States or any agency thereof.” Rather, he is seeking to have his state criminal conviction
and sentence overturned by obtaining a writ of mandamus against the State of Missouri, a
prosecutor, and an assistant attorney general. By its terms, 28 U.S.C. § 1361 does not apply to state
actors, but only to officers and employees of the United States. As such, this statutory provision
does not give the Court jurisdiction to issue the writ of mandamus that petitioner seeks. Therefore,
to the extent that petitioner is seeking a writ of mandamus under § 1361, the petition must be
denied.
D. Construction of Petition for Writ of Mandamus as a Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2254

The Court is cognizant that because petitioner is a self-represented litigant, it must liberally
construe his pleadings. To that end, the Court recognizes that “when a state prisoner is challenging
the very fact or duration of his physical imprisonment, and the relief he seeks is a determination
that he is entitled to immediate release or a speedier release from that imprisonment, his sole
federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). See
also Adams v. Agniel, 405 F.3d 643, 644-45 (8th Cir. 2005) (explaining that a habeas action is the
proper vehicle for a prisoner to challenge the legality of his sentence or seek immediate or speedier
release). Nevertheless, even if the Court construed the instant petition for writ of mandamus as a
habeas action arising under 28 U.S.C. § 2254, the petition would still be subject to dismissal.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to all
petitions for federal habeas relief filed by state prisoners after the statute’s effective date of April
24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). Under the AEDPA, there is 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).
Generally, 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). For claims in a
successive application that were not presented in a prior application, however, “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”).
Here, as set forth above, petitioner has filed a prior 28 U.S.C. § 2254 petition for writ of
habeas corpus. See McAfee v. Stange, No. 1:21-cv-90-SRC (E.D. Mo. June 11, 2021). The petition

was denied on the merits, and the action dismissed, on November 23, 2021. The United States
Court of Appeals denied a certificate of appealability and dismissed petitioner’s subsequent appeal.
See McAfee v. Stange, No. 22-1023 (8th Cir. 2022). Due to this earlier petition, petitioner’s instant
petition – if construed as arising under § 2254 – would be successive. Before bringing a successive
petition under § 2254, petitioner must seek authorization from the Court of Appeals. That
authorization has not been sought, much less granted, and thus, the petition would have to be
dismissed.
It is possible that petitioner intended to use his petition for writ of mandamus as a way
around the bar on second or successive habeas petitions in federal court. However, “[i]t is well
established that inmates may not bypass the authorization requirement of 28 U.S.C. § 2244(b)(3)

for filing a second or successive § 2254 or § 2255 action by purporting to invoke some other
procedure.” United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005). See also Ward v.
Norris, 577 F.3d 925, 935 (8th Cir. 2009) (determining that petitioner’s Rule 60(b) and Rule 59
motions constituted a second or successive 28 U.S.C. § 2254 petition for writ of habeas corpus,
and was barred).
For these reasons, even if the Court construed the instant petition for writ of mandamus as
a petition for writ of habeas corpus under 28 U.S.C. § 2254, the Court has no authorization to rule
upon it, and would have to deny and dismiss the petition as successive.
E. Summary Dismissal
The burden of proving subject matter jurisdiction belongs to petitioner. See V S Ltd. P’ship
v. Dep’t of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000). See also Magee v. United
States, 9 F.4th 675, 680 (8th Cir. 2021) (“The burden of proving the existence of subject matter

jurisdiction rests with the party invoking federal jurisdiction”). The issue of subject matter
jurisdiction may be raised at any time, by any party or the court. Gray, 567 F.3d at 982.
In this case, as discussed more fully above, petitioner has filed a document styled as a
petition for writ of mandamus. Instead of compelling an official to fulfill a duty, however,
petitioner argues – and in some instances, re-argues – legal and factual issues that he has already
litigated at trial, on direct appeal, in a state postconviction action, on appeal from the denial of that
motion, in a petition for writ of habeas corpus under 28 U.S.C. § 2254, and in an appeal from the
denial of that petition. Such a collateral attack is not a proper purpose for a writ of mandamus
under 28 U.S.C. § 1651, as the actions of a state court and state judicial officers are matters
“completely outside the field” where the Court is permitted to judicially review and correct. In

short, § 1651 does not give the Court a jurisdictional basis to entertain this action. Likewise,
because petitioner is not seeking “to compel an officer or employee of the United States or any
agency thereof,” 28 U.S.C. § 1361 provides no jurisdiction to act either.
The Court has considered whether to construe the petition for writ of mandamus as a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Even if the petition were so
considered, it would be a successive petition brought without authorization. Therefore, the Court
could not entertain it.
For all these reasons, petitioner’s petition for writ of mandamus must be denied, and this
action dismissed without prejudice for lack of jurisdiction.
F. Motion for Leave to Proceed in Forma Pauperis
Petitioner has filed a motion for leave to proceed in forma pauperis. (Docket No. 3). Having
reviewed the motion, the Court finds that it should be granted.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in forma
pauperis (Docket No. 3) is GRANTED.
IT IS FURTHER ORDERED that petitioner’s petition for writ of mandamus (Docket
No. 1) is DENIED AND DISMISSED without prejudice for lack of subject matter jurisdiction.
See Fed. R. Civ. P. 12(h)(3). A separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in
good faith.
Dated this 2274 day of February, 2023.
LE q Lf

SENIOR UNITED STATES DISTRICT JUDGE

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10238330. Public record. Not legal advice.