McKown v. Mitchell, WD

• Citation: 869 S.W.2d 765
• Decision Date: 14 December 1993
• Docket Number: No. WD,WD
• Parties: Rodney L. McKOWN, Appellant, v. Cranston MITCHELL, Respondent. 46832.
• Court: Court of Appeal of Missouri (US)

Page 765

869 S.W.2d 765 Rodney L. McKOWN, Appellant,
v.
Cranston MITCHELL, Respondent. No. WD 46832. Missouri Court of Appeals,
Western District. Dec. 14, 1993. Motion for Rehearing and/or Transfer to
Supreme Court Denied Feb. 1, 1994.

Page 766

Rodney McKown, pro se.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stewart M. Freilich, Asst. Atty. Gen., Jefferson City, for respondent.

Before ULRICH, P.J., and BERREY and SMART, JJ.

ULRICH, Presiding Judge.

Rodney McKown appeals the summary judgment entered against him and in favor of Cranston Mitchell, Chairman-Missouri Board of Probation and Parole and James Purkett, Superintendent of the Farmington Correctional Center, on his Petition for Declaratory Judgment and Injunctive Relief. Mr. McKown's petition claimed that the parole statutes in effect at the time of his offense, guilty plea and sentencing for first degree murder, vested him with a protected liberty interest in being paroled after "satisfying the deterrent and retributive portion of his life sentence." As part of Mr. McKown's Suggestions in Opposition to the Motion for Summary Judgment, he included a motion to restyle his petition as a petition for habeas corpus. The circuit court denied his motion to restyle the petition because it did not state a cause of action in habeas corpus, and the circuit court granted summary judgment against Mr. McKown on his petition for declaratory judgment.

On appeal Mr. McKown alleges three points of error. He declares that (1) his petition asserted a claim properly raised by application for habeas corpus relief; (2) genuine issues of material fact existed as to whether he had liberty interest protected by due process and entitled to parole or whether the Parole Board applied section 217.690, RSMo 1984, in violation of the prohibition against ex post facto laws; and (3) the Parole Board permitting two representatives of the victim's family at the parole hearing violates his rights to due process and equal protection.

The circuit court's orders denying the motion to restyle and granting summary judgment are affirmed.

Page 767

I

Mr. McKown claims as his first point on appeal that the circuit court erred in granting summary judgment and denying his motion to restyle the petition to seek habeas corpus. The circuit court stated that the petition failed to allege a cognizable habeas corpus claim because the petition derives from Mr. McKown's asserted right to parole and not discharge. Mr. McKown believes he has a protected liberty interest to be paroled after serving 12 years of his life sentence engendered by the parole statute in effect when he was sentenced. ¹

Rule 91.04(a)(3) requires a petition for a writ of habeas corpus to include facts showing that the restraint is illegal or improper. For reasons discussed in part II of this opinion, Mr. McKown does not have a legal right to be released on parole. Therefore, there is no legal basis to a habeas corpus claim. Point one is denied.

II

Mr. McKown claims, as his second point on appeal, that the trial court erred in granting respondent's motion for summary judgment because genuine issues of material fact existed regarding whether Mr. McKown had a protected liberty interest and was entitled to parole or whether the Board of Probation and Parole, ("Parole Board") improperly applied section 217.690, RSMo (1984), in violation of the prohibition against ex post facto laws.

Mr. McKown asserts that the parole guidelines in effect when he was sentenced entitle him to parole after serving twenty-five percent of his sentence. Section 549.261, RSMo 1969 (repealed 1982) was the applicable statute when Mr. McKown was sentenced and 13 CSR 80-2 et seq., and MBPP 213A (7-1-79) were the applicable parole guidelines. Mr. McKown relies on Williams v. Missouri Board of Probation and Parole, 661 F.2d 697 (8th Cir.1981), cert. denied 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 855 (1982), for authority that section 549.261 gave prisoners a reasonable expectation of being paroled and, therefore, a protected liberty interest. ² He argues that the regulations devised under authority of section 549.261 made parole mandatory after serving a certain length of time and did not permit Parole Board discretion. 13 CSR 80-2.010 ³ provided in pertinent part:

The board considers the deterrent and retributive portion of the sentence to have been served when approximately twenty-five percent (25%) of the maximum sentence has been served....

13 CSR 80-2.010(5)(A)(5).

Mr. McKown's argument that section 549.261(1) eliminated the Parole Board's discretion is not persuasive despite several decisions having cited Williams for the proposition that section 549.261 gave prisoners a protected liberty interest. ⁴ The relevant part of 549.261(1), with emphasis added, states:

When in its opinion there is reasonable probability that a prisoner can be released without detriment to the community or to himself, the board shall release or parole any person confined in any correctional institution administered by state authorities.

After the Williams decision was handed down, the Missouri Legislature quickly repealed section 549.261 and enacted section 217.690, RSMo 1982. Section 217.690 articulates that "the Parole Board has discretion to release or parole an offender except as otherwise

Page 768

prohibited by law after determining there is reasonable probability that [the] offender ... can be released without detriment to the community or himself," and no protected liberty interest is created by the statute. Id.; Fults v. Missouri Board of Probation & Parole, 857 S.W.2d 388, 393 (Mo.App.1993); See Maggard v. Wyrick, 800 F.2d 195, 198 (8th Cir.1986) (holding that under section 217.690, RSMo 1992, parole release is purely discretionary).

Section 549.261, referring to the Parole Board, enunciated the non-imperative language, "in its opinion," and in subsection three stated, "[a] parole shall be ordered only for the best interest of society...." The Williams court, focusing on the word "shall," nevertheless, read this to be mandatory language removing the Parole Board's discretion when it determined to a reasonable certainty that the prisoner would not be detrimental to the community and compelled the prisoner's release. The court, therefore, determined...