Brown v. MISSOURI BD. OF PROBATION AND PAROLE, 89-1121-CV-W-JWO.

• Decision Date: 08 December 1989
• Docket Number: No. 89-1121-CV-W-JWO.,89-1121-CV-W-JWO.
• Parties: John William BROWN, Petitioner, v. MISSOURI BOARD OF PROBATION AND PAROLE and Bill Armontrout, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

727 F. Supp. 524

John William BROWN, Petitioner, v. MISSOURI BOARD OF PROBATION AND PAROLE and Bill Armontrout, Warden, Respondent.

No. 89-1121-CV-W-JWO.

United States District Court, W.D. Missouri, W.D.

December 8, 1989.

John William Brown, Jefferson City, Mo., pro se.

William Webster, Atty. Gen., Jefferson City, Mo., for respondent.

MEMORANDUM AND ORDERS DIRECTING FURTHER PROCEEDINGS

JOHN W. OLIVER, Senior District Judge.

I

The pending state prisoner petition for federal habeas corpus relief is before this Court for a second time. Petitioner's first Section 2254 petition, filed as Brown v. Armontrout, No. 88-1029-CV-W-8-JWO- P, was dismissed without prejudice for failure to exhaust by an order entered on March 16, 1989.¹ On November 20, 1989, however, the petitioner filed a pro se motion entitled as a "motion to vacate and reinstate" in Case No. 88-1029-CV-W-8-JWO-P.

For reasons stated in a memorandum filed in that case on November 30, 1989, petitioner's pro se motion was treated as a motion for leave to file a second petition for federal habeas corpus relief and an order was entered directing the Clerk to file a copy of petitioner's first pro se petition for habeas corpus originally filed in Case No. 88-1029-CV-W-8-P-JWO as petitioner's second petition for federal habeas corpus relief.

A further order was entered in petitioner's first case that directed the Clerk to file a copy of this Court's November 30, 1989 order entered in petitioner's first case in this, the petitioner's second case, together with a copy of petitioner's pro se motion entitled "motion to vacate and reinstate" and the exhibits attached thereto that were filed in petitioner's first case.

That order was entered so that the exhibits attached to the petitioner's "motion to vacate and reinstate" would be before this Court for consideration in its determination of what further proceedings should be directed in regard to petitioner's second petition for federal habeas corpus relief. The files and records in this second case show that the Clerk complied with the orders entered in petitioner's first case.

It is therefore clear that although the petition for habeas corpus before the Court in this case is identical to the petition filed in petitioner's first case, the question of whether petitioner has now exhausted his available state postconviction remedies must be considered in light of Exhibits B, C, and D attached to petitioner's pro se "motion to vacate and reinstate."²

For reasons stated in the next part of this memorandum opinion, it is necessary that an order be entered pursuant to Rule 7 of the Rules governing Section 2254 cases under which the record before the Court may be expanded to obtain additional material relevant to the determination of the question of whether petitioner has, in fact, exhausted his available state court postconviction remedies.

II

A.

Judge Stevens' order to show cause entered on November 7, 1988 in petitioner's first case accurately summarized petitioner's federal claim by stating that the petitioner "challenges the decision of the Missouri Board of Probation and Parole to rescind an unexecuted grant of parole to petitioner without any type of notice or opportunity to be heard" and that the petitioner "contends that the decision of the state agency denied him due process." Doc. 4 at 2.

On December 7, 1988 respondent filed his first response to Judge Stevens' order to show cause that prayed that petitioner's first federal habeas petition should be dismissed without further judicial proceedings. That response did not address the merits of petitioner's federal claim. Rather, the prayer of the response was based on the ground that petitioner should be required to exhaust by filing a declaratory judgment action.

Petitioner thereafter filed a traverse on December 12, 1988 in which he contended that the issue he sought to present in his first federal habeas corpus petition had, in fact, been fairly presented to a Missouri court in a petition for habeas corpus that petitioner had filed in the Supreme Court of Missouri but that his state court petition for habeas corpus had been summarily denied by that court. Respondent filed a second response to Judge Stevens' order to show cause on December 12, 1988 to which he attached a copy of the Supreme Court of Missouri's files in State ex rel John William Brown v. Missouri Board of Parole, No. 68,353. That file of the Supreme Court of Missouri included, among other things, a copy of the petition for writ of habeas corpus filed by the petitioner in that court on June 30, 1986.³

Although petitioner's habeas corpus petition filed in the Supreme Court of Missouri made reference to other litigation then being maintained by the petitioner, it is quite clear that the petitioner did, in fact, fairly present to the Supreme Court of Missouri the federal claim that he has subsequently presented in his federal habeas corpus petitions. Specifically, petitioner alleged in his habeas petition filed in the Supreme Court of Missouri that on March 3, 1986 he was handed an envelope by his Institutional Parole Officer, John Bowen, and that:

The envelope contained a notice from Respondents PAROLE BOARD, entitled: 1. RELATING TO RELEASE CONSIDERATION, which stated at Section No. 4: Your previously set release date has been cancelled. Your case will be heard in May, 1987. At the bottom of this notice, under the Section: The reasons for the action taken are: "On 2-3-86 we were advised by institutional parole staff that since February, 1985 you have received 4 conduct violations, some of a serious nature. Because of your continued poor adjustment in the Division of Adult Institution the Board is cancelling your release of 5-7-86 and scheduling you for a personal hearing in May, 1987."

This notice was dated February 24, 1986.⁴

Petition at 4.

The petition further alleged that "the Respondent Parole Board took his outdate, that there was NO hearing, no notice or anything, no chance to respond." Id. at 4-5. Petitioner specifically alleged in his state habeas petition that he was denied due process of law under the principles stated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Petitioner also cited and relied on Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973).

The file of the Supreme Court of Missouri in petitioner's Case No. 68,353 establishes that although petitioner's motion for leave to proceed in forma pauperis was granted on June 30, 1986, petitioner's petition for habeas corpus was summarily denied on September 16, 1986.

B.

Petitioner alleged in his first federal habeas petition that the "precise issue raised herein has been presented to and rejected by the Supreme Court of Missouri. See, State ex rel. John William Brown v. Missouri Board of Probation and Parole, et al., No. 68,353, Sept. 16, 1986. See, Petitioner's Motion Exhibit B."⁵ Petition at 6(a). Examination of the habeas petition filed in the Supreme Court of Missouri in Case No. 68,353 did establish that the petitioner did, in fact, present the due process issue concerning the validity of the Missouri Board of Probation and Parole's February 24, 1986 cancellation of his previously set release date to that court. That fact, however, did not establish that petitioner had exhausted his available state court postconviction remedies before he filed his first petition for federal habeas corpus. This Court so concluded when it dismissed petitioner's first federal habeas corpus petition without prejudice on March 16, 1989.

This Court's March 16, 1989 order, however, was not based on the notion that state habeas corpus was not an available state court postconviction remedy that petitioner could exhaust by properly complying with the applicable law of Missouri.

We discuss that question in the next part of this memorandum opinion. For the question of whether petitioner has, in fact, now exhausted his available state court habeas corpus remedy cannot be answered until after the record before this Court is expanded pursuant to Rule 7 of the Rules governing Section 2254 cases to include additional material that is not presently before this Court.

III

A.

While our March 16, 1989 order reflects our agreement that petitioner had not exhausted his available state court remedies, that order also made clear that we rejected the respondent's contention that a declaratory judgment action was the only state court remedy available to the petitioner under which he could obtain a full and fair hearing of the merits of his claim. This Court's March 16, 1989 order, a copy of which was attached as Exhibit A to petitioner's pending petition, stated that: "Under Missouri law the petitioner may challenge the action of the Missouri Board of Probation and Parole in the courts of Missouri by the filing of (1) a declaratory judgment action or (2) a writ of habeas corpus pursuant to Rule 91.01 of the Missouri Supreme Court Rules." Doc. 1 at 1. Page v. Wyrick, 674 S.W.2d 540 (Mo. banc 1984), was cited in that order as an example of a case in which a petitioner's claim of alleged unlawful conduct on the part of the Missouri Board of Probation and Parole was considered on the merits in Missouri Rule 91.01 habeas corpus proceedings.⁶

Page v. Wyrick was also recently cited by this Court in Hoy v. Jim Jones, No. 88-0440-CV-W-8-JWO-P, 1989 WL 161009 (W.D.Mo. March 27, 1989). The respondent conceded in that case that a petitioner's federal claim that the Missouri Board of Probation and Parole had revoked his parole in violation of principles stated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), could be exhausted in a Missouri Rule 91.01 habeas corpus proceeding. Respondent conceded in Hoy that the petitioner had filed...