Buff v. Roper ( 2005 )

155 S.W.3d 811 (2005)

John BUFF, Appellant,
v.
Donald ROPER, Respondent.

No. ED 85318.

Missouri Court of Appeals, Eastern District, Division Five.

January 25, 2005.

John Buff, No. 185127, Potosi Correction Center, Mineral Point, pro se.

Andrew W. Hassell, Jefferson City, MO, for Respondent.

GEORGE W. DRAPER III, C.J.

John Buff (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. In response, Appellant filed his Appellant's Brief that argues the merits of his appeal. Appellant offers no argument about the judgment's appealability. To the extent that Appellant may be arguing that he is entitled to review because he is making a claim of actual innocence, he offers no legal support for this assertion. Indeed, 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.

LAWRENCE G. CRAHAN, J. and GLENN A. NORTON, J., concur.