Gaston v. Norman

• Decision Date: 09 March 2012
• Docket Number: Case No. 11-0789-CV-W-DGK-P
• Parties: DELBERT GASTON, Petitioner, v. JEFF NORMAN,1Respondent.
• Court: U.S. District Court — Western District of Missouri

DELBERT GASTON, Petitioner,
v.
JEFF NORMAN,¹Respondent.

Case No. 11-0789-CV-W-DGK-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Dated: March 9, 2012

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, an inmate at the Jefferson City Correctional Center in Jefferson City, Missouri, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 8, 2011. Petitioner does not challenge his underlying state convictions or the sentences which were imposed. Rather, petitioner's sole ground for relief challenges the manner in which his sentences have been computed by the MDOC. Specifically, he contends that he is entitled to credit "for time on bond." (Doc. No. 1, pg. 6).

Respondent has filed a Motion to Dismiss, (Doc. No. 6), arguing as follows: (1) that petitioner's claims are unexhausted, and should be dismissed for failure to exhaust state court remedies; or in the alternative, (2) that because petitioner's unexhausted claims are without merit, the petition should be denied with prejudice under 28 U.S.C. § 2254(b)(2). Petitioner has filed reply suggestions. (Doc. No. 9).

FAILURE TO EXHAUST

First, respondent is correct that petitioner has not exhausted his state court remedies. The United States Supreme Court stated in Rose v. Lundy, 455 U.S. 509, 520 (1982), that "our interpretation of §

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2254(b) and (c) provides a simple and clear instruction to potential litigants: before you bring any claims to federal courts, be sure that you first have taken each one to state court." When a Missouri prisoner wishes to challenge the calculation of credit for time served, he or she may bring an action for a declaratory judgment in the state courts. Collar v. MDOC, 314 S.W.3d 386, 389 (W.D. Mo. 2010). He or she also may seek a writ of mandamus. State v. Burgess, 128 S.W.3d 907, 909 (W.D. Mo. 2004).

Petitioner has failed to present evidence that he has pursued either a declaratory judgment or a writ of mandamus in the state courts. It does appear that he has filed a petition...