91 F.3d 1114 (8th Cir. 1996), 95-3629, Spencer v. Kemna

Docket Nº:95-3629.
Citation:91 F.3d 1114
Party Name:Randy G. SPENCER, Appellant, v. Mike KEMNA; Missouri Attorney General, Appellees.
Case Date:August 02, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1114

91 F.3d 1114 (8th Cir. 1996)

Randy G. SPENCER, Appellant,

v.

Mike KEMNA; Missouri Attorney General, Appellees.

No. 95-3629.

United States Court of Appeals, Eighth Circuit

August 2, 1996

Submitted May 17, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

19, 1996.

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David Bandre, Jefferson City, MO, argued, for appellant.

Cassandra Dolgin, Asst. Atty. Gen., Jefferson City, MO, argued (Michael J. Spillane, on the brief), for appellee.

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

WOLLMAN, Circuit Judge.

Randy G. Spencer appeals the district court's 1 dismissal of his 28 U.S.C. § 2254 petition as moot. We affirm.

I.

Spencer was convicted in Missouri state court of felony stealing and burglary and was sentenced to concurrent terms of three years' imprisonment. He began serving his sentences on October 17, 1990, and was paroled on April 16, 1992. Spencer's parole was revoked on September 24, 1992, following a revocation hearing before the Missouri Board of Probation and Parole. The Board revoked Spencer's parole based on a violation report alleging that he had committed rape, used cocaine, and used a dangerous weapon.

Spencer filed this section 2254 petition on April 1, 1993, against Mike Kemna, Superintendent of the Western Missouri Correctional Center, and the Attorney General of Missouri (the State). The petition alleged that: (1) Spencer was denied the right to a preliminary

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hearing on his parole violations; (2) his conditional release date of October 16, 1992, was suspended without a hearing; (3) his parole revocation hearing violated his due process rights, in that he was denied counsel, he was not allowed to confront adverse witnesses, and the sole evidence against him was the violation report; and (4) he had to wait four months to receive a statement of the reasons why his parole was revoked.

The district court ordered the State to show cause by June 3, 1993, why Spencer's habeas relief should not be granted. The State requested and received two extensions of time until July 7 to file a response. Spencer objected to both motions for extensions of time, stating that the requests for extensions were designed to vex, harass, and infringe upon his substantive rights. The State filed a response to the show cause order on July 7, arguing that Spencer's claims were procedurally barred, or, alternatively, that the claims should be dismissed on their merits.

On July 14, Spencer filed a motion for final disposition of the matter, arguing that because he could be released as early as August 7, he would suffer irreparable harm if his petition was not decided before that date, in that his petition would become moot and he would have no other way to vindicate his rights. Spencer alleged that the State's motive in requesting extensions was to cause his petition to become moot. He also argued the merits of his petition.

Spencer was released on parole on August 7, 1993, and was discharged from parole upon completion of his sentences on October 16. On February 3, 1994, the district court noted Spencer's motion for final disposition and stated that "[t]he resolution of this case will not be delayed beyond the requirements of this Court's docket." On August 23, 1995, the district court dismissed the petition for habeas relief as moot because the sentences had expired.

Spencer argues on appeal that the district court erred in denying his petition as moot because the court's...

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