Hawkins v. Higgins, 89-1071
| Decision Date | 30 May 1990 |
| Docket Number | No. 89-1071,89-1071 |
| Citation | 898 F.2d 1365 |
| Parties | Larry F. HAWKINS, Sr., Appellant, v. Gerald HIGGINS, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Steven R. Cantonwine, Kansas City, Mo., for appellant.
Stephen D. Hawke, Jefferson City, Mo., for appellee.
Before FAGG, Circuit Judge, and HEANEY and BRIGHT, Senior Circuit Judges.
Larry Hawkins filed a petition for federal habeas corpus relief in the United States District Court for the Western District of Missouri, alleging that his continued confinement by the state of Missouri was unlawful because his sentence had expired. The district court dismissed the petition because it found that Hawkins had not exhausted his state remedies. We reverse.
Hawkins was convicted in Missouri for selling marijuana. On January 18, 1983, he was sentenced to a term of five years imprisonment in the Missouri Department of Corrections. On April 19, 1984, he was released on parole. At that time, Hawkins was notified by the Missouri Board of Probation and Parole that under provisions of Mo.Rev.Stat. Sec. 195.221 his parole would be extended an additional five years beyond the term of his sentence. Hawkins was further informed that any violations of his parole during either the original sentence or the additional five-year period could result in his recommitment to confinement for the remainder of his original term.
On August 13, 1984, Mo.Rev.Stat. Sec. 195.221 was repealed.
On February 22, 1988, after the expiration of his original five-year sentence, Hawkins violated the terms of his parole. The Missouri Board of Probation and Parole revoked Hawkins' parole and recommitted him to confinement for a period of three years and nine months. Hawkins was given credit only for time actually spent in confinement.
Hawkins filed in federal district court a petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 contending a violation of the prohibition against ex post facto laws, the prohibition against double jeopardy, and the Eighth Amendment of the United States Constitution. Based on the record before it, the district court concluded that Hawkins had failed to exhaust his adequate and available state remedies, pointing specifically to a declaratory judgment action pursuant to Missouri Supreme Court Rule 87.02(c) or (d). Hawkins v. Higgins, No. 88-0452-CV-W-5-P, slip op. at 3-4 (W.D.Mo. Dec. 21, 1988). The district court reasoned, relying on Snethen v. Nix, 736 F.2d 1241, 1245 (8th Cir.1984), that a petitioner's belief that the state courts will rule against his or her claims on the merits does not warrant waiving the exhaustion requirement. Hawkins, slip op. at 4.
On appeal, Hawkins asks us to reverse because the district court's holding is clearly erroneous. Hawkins relies on Gallup v. State of Missouri, 733 S.W.2d 435 (Mo. banc 1987) and Harness v. Missouri State Board of Probation and Parole, 749 S.W.2d 7 (Mo.App.1988). His theory is that, because the Missouri Court of Appeals in Harness held that the repealed statute continues to...
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...364 (8th Cir.1981). However, exhaustion of state remedies is not required when it appears that such remedies are futile. Hawkins v. Higgins, 898 F.2d 1365 (8th Cir.1990). A decision on the same question of law, under almost identical facts, makes state court remedies futile. Id. (citing Pie......
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