Thompson v. Missouri Bd. of Parole

• Decision Date: 08 May 1991
• Docket Number: No. 90-5082,90-5082
• Citation: 929 F.2d 396
• Parties: Douglas Wayne THOMPSON, Appellant, v. MISSOURI BOARD OF PAROLE and United States Attorney, Minneapolis, Minnesota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 396

929 F.2d 396

Douglas Wayne THOMPSON, Appellant, v. MISSOURI BOARD OF PAROLE and United States Attorney, Minneapolis, Minnesota, Appellees.

No. 90-5082.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 12, 1990.

Decided March 29, 1991.

Rehearing Denied May 8, 1991.

Heidi H. Crissey, Stillwater, Minn., for appellant.

Ronald L. Jurgeson, Jefferson City, Mo., for appellees.

Before LAY, Chief Judge, and HEANEY and FRIEDMAN, ^* Senior Circuit Judges.

LAY, Chief Judge.

Douglas Wayne Thompson appeals the order of the district court ¹ denying his petition for a writ of habeas corpus. Thompson currently is a federal prisoner who seeks relief from a custody detainer lodged against him by the state of Missouri. The detainer requires federal officials to transfer Thompson into the custody of Missouri officials at the completion of his federal sentence, so that Thompson may complete his parole relating to a previous murder conviction in Missouri. The district court rejected Thompson's claim that the detainer is invalid under Missouri law. Thompson also raises several other claims that were not addressed by the district court. We find these claims without merit, with the exception of Thompson's claim that he deserves parole credit for the two years prison time served due to the Missouri Parole Board's vindictive denial of parole. We hold that Thompson has served five years parole and must receive parole discharge consideration.

I.

Thompson has a long history in the state and federal courts. In 1961, he escaped from a California prison where he was serving a five-years-to-life sentence for armed robbery. He went on a crime spree that ended only after he shot and killed a policeman and another person in separate incidents in Missouri. Thompson was convicted of capital murder in Missouri in 1961, but that sentence was vacated because the prosecution withheld material evidence. State v. Thompson, 396 S.W.2d 697 (Mo.1965). On retrial Thompson was convicted and sentenced to life imprisonment in 1966. In 1981, this second conviction was vacated when this court found the jury in his 1966 trial had been unconstitutionally selected. Thompson v. White, 661 F.2d 103 (8th Cir.1981), vacated, 456 U.S. 941, 102 S.Ct. 2003, 72 L.Ed.2d 463 (1982), decision adhered to on remand, 680 F.2d 1173 (8th Cir.1982), cert. denied, 459 U.S. 1177, 103 S.Ct. 830, 74 L.Ed.2d 1024 (1983). In 1984, Thompson was tried and convicted for murder a third time and was sentenced to life imprisonment.

In 1980, before his conviction was vacated by this court, the Missouri Parole Board paroled Thompson on a custody detainer to the State of California so he could complete his 1961 California sentence, which was interrupted when he escaped from prison. Thompson served only a few months in California, however, before he was released on writ of habeas corpus. Thus, Thompson was free on parole from 1981 until he was reconvicted and returned to prison in 1984. Thompson requested parole in Missouri but was denied without hearing. He then petitioned for a writ of habeas corpus on the ground that the Board's refusal to grant parole was vindictive. The district court granted the writ and this court affirmed. Thompson v. Armontrout, 647 F.Supp. 1093 (W.D.Mo.), aff'd, 808 F.2d 28 (8th Cir.1986). The district court ordered Thompson's release on parole, and he was released in December, 1986. In June, 1987, he informed the parole board that he no longer would report, claiming he had served the maximum five-year parole term.

In 1988, Thompson was arrested in Minnesota on bank robbery and firearms charges. He pled guilty and is presently serving a twenty-year prison term. Missouri officials lodged a detainer with the State of Minnesota claiming Thompson is subject to the supervision of the Missouri Parole Board upon completion of his federal term. On December 8, 1988, while in jail in Minnesota awaiting sentencing on his bank robbery charges, Thompson filed a petition for writ of habeas corpus in the District of Minnesota. In his petition, Thompson alleged that the Missouri detainer was "the product of vindictiveness," and that Missouri officials were attempting to punish him for successfully challenging his Missouri conviction.

Specifically, Thompson asserted that the Missouri detainer was invalid under Mo.Ann.Stat. Sec. 558.011.4 (Vernon Supp.1991), which he alleged required discharge from parole after five years. Thompson claimed he had served five years parole, counting the two years served in prison from 1984-86 when the state improperly denied him parole. Thompson also requested a temporary restraining order to prevent the United States Attorney from releasing him into the custody of the Missouri Parole Board.

The district court denied the petition. Although Thompson had not exhausted his claim in the Missouri state courts, the court found exhaustion not required because Thompson did not raise a colorable federal claim. See Granberry v. Greer, 481 U.S. 129, 136, 107 S.Ct. 1671, 1676, 95 L.Ed.2d 119 (1987). The court also adopted the magistrate's report and recommendation, in which the magistrate excused Thompson's failure to exhaust in light of previous findings by this court that Missouri courts have acted vindictively against Thompson, rendering exhaustion futile. The court then considered the petition on the merits and found that Mo.Ann.Stat. Sec. 558.011 applied only to prisoners convicted of offenses committed after 1979. Thus, the statute was inapplicable to Thompson, who committed his offense in 1961. Having denied Thompson's substantive claim, the court denied the temporary restraining order request as moot. This appeal followed.

II.

In reviewing the district court's order we first note that habeas corpus is the proper vehicle for challenging a state detainer. The Missouri detainer makes Thompson "a person in custody pursuant to the judgment of a State court." 28 U.S.C. Sec. 2254(a) (1988). The fact that Thompson seeks relief from future detention does not bar habeas review. Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989); Braden v. 30th Judicial Circuit Ct., 410 U.S. 484, 488-89 & n. 4, 93 S.Ct. 1123, 1126-27 & n. 4, 35 L.Ed.2d 443 (1973). Proper venue lies in the District of Minnesota, as that court has jurisdiction over Thompson's present custodian. Braden, 410 U.S. at 494-95, 93 S.Ct. at 1129-30.

Upon review of the record, we find no error in the district court's decision. The exhaustion rule is not a rule of jurisdiction, and sometimes "the interests of comity and federalism will be better served by addressing the merits forthwith." Granberry, 481 U.S. at 134, 107 S.Ct. at 1675. This is particularly true when the claim is non-meritorious. Id. at 135, 107 S.Ct. at 1675. With regard to the merits, the Missouri conditional release statute on its face does not apply to Thompson's conviction. See Mo.Ann.Stat. Sec. 558.011 (Vernon Supp.1991). That statute is part of Missouri's revised criminal code, which is effective only for crimes committed after 1979. Mo.Ann.Stat. Sec. 556.031.1 (Vernon Supp.1991); State v. Crow, 600 S.W.2d 162, 166 (Mo.App.), cert. denied, 449 U.S. 882, 101 S.Ct. 234, 66 L.Ed.2d 107 (1980). ² Thompson's claim is non-meritorious and exhaustion is not required. Lacking a substantive basis for relief, Thompson's request for a temporary restraining order also must be denied.

III.

Thompson also raises a number of claims on appeal, both in his pro se brief and in his counsel's brief, which the state alleges are new. The state argues that these claims are abusive and unexhausted because none of these claims were presented to Missouri state courts or to the district court. With regard to exhaustion, we affirm the district court's finding that exhaustion of state remedies would be futile in light of the state's vindictive actions toward Thompson in the past. See Thompson v. Armontrout, 808 F.2d 28 (8th Cir.1986); see also Hawkins v. Higgins, 898 F.2d 1365, 1367 (8th Cir.1990) (excusing exhaustion on grounds of futility).

As to abuse of the writ, our review of Thompson's petition for habeas corpus indicates that the focus of that petition is generally the same as the claims now raised on appeal. The two main themes of Thompson's petition were (1) the vindictiveness of Missouri officials against him, and (2) his entitlement to release from probation under Mo.Ann.Stat. Sec. 558.011. Although the only discernible claim for relief in the petition is the statutory claim, Thompson did raise the claims now urged on appeal in supplemental pleadings before the district court. ³ Giving appropriate liberal construction to a pro se petition, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), we find that Thompson raised the instant claims before the district court. Thompson's attempts to have the district court decide these claims provides assurance that he has not abused the writ.

We now turn to the merits of Thompson's claims in his pro se brief and his counsel's brief. ⁴ Thompson's first claim is that the Missouri court system and Attorney General conspired to punish him for seeking federal habeas relief by imprisoning him in 1984. ⁵ Thompson essentially asks this court to reconsider and extend its decision in Thompson v. Armontrout, 808 F.2d 28 (8th Cir.1986), in which we affirmed the district court's order mandating his release on parole after finding the state vindictively denied him parole. Thompson now argues that the proper remedy for the state's vindictive action is complete release from the state's custody.

We decline to modify the remedy ordered by the district court in 1986. ⁶ The state complied with the 1986 order by releasing Thompson on parole. Our review of the record does not reveal evidence of further instances of vindictive action by the state since his release in 1986. Although the state has asserted its claim to parole custody over Thompson, that...