Shawn P. Moore, Appellant v. Al Luebbers, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Shawn P. Moore, Appellant v. Al Luebbers, Respondent. Case Number: ED85427 Handdown Date: 03/29/2005 Appeal From: Circuit Court of St. Francois County, Hon. James H. Kelly Counsel for Appellant: Shawn P. Moore Counsel for Respondent: Deborah Daniels Opinion Summary: Shawn Moore appeals from a judgment denying his petition for writ of habeas corpus. APPEAL DISMISSED. Division Five holds: No appeal lies from a judgment dismissing a petition for a writ of habeas corpus. Citation: Opinion Author: George W. Draper III, C.J. Opinion Vote: DISMISSED. Crahan, J. and Norton, J., concur. Opinion: Shawn Moore (Appellant) appeals from a judgment denying his petition for writ of habeas corpus. Appeal dismissed. Initially, this Court must determine whether it has jurisdiction. If we lack jurisdiction to entertain an appeal, then it should be dismissed. Fischer v. City of Washington, 55 S.W.3d 372, 377 (Mo. App. E.D. 2001). Here, Appellant seeks to appeal from the circuit court's judgment denying his petition for writ of habeas corpus. An appeal does not lie from the denial of a petition for habeas corpus. Blackmon v. Missouri Board of Probation and Parole, 97 S.W.3d 458 (Mo. banc 2003); McDermott v. State, 120 S.W.3d 261, 262 (Mo. App. E.D. 2003).

We issued an order directing Appellant to show cause why his appeal should not be dismissed. Appellant has filed a response in which he primarily argues the merits of his appeal. Appellant also argues that he is entitled to an appeal, because he has a constitutional right to have the trial court's unjust ruling redressed. Appellant offers no legal authority for his unique proposition. However, even though Appellant may not have the right to appeal the ruling, he has a remedy. A petitioner's remedy where a petition for writ of habeas corpus is denied is to file a new writ petition in a higher court. Webster v. Purkett, 110 S.W.3d 832, 837 (Mo. App. E.D. 2003). Appellant has not filed a new writ petition. The appeal is dismissed for lack of an appealable judgment.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.