State ex rel. Shields v. Purkett, 76526

• Court: United States State Supreme Court of Missouri
• Writing for the Court: PRICE
• Citation: 878 S.W.2d 42
• Parties: STATE ex rel. Richard W. SHIELDS, Petitioner, v. James PURKETT, Superintendent, Farmington Correctional Center, Respondent.
• Docket Number: No. 76526,76526
• Decision Date: 21 June 1994

Page 42

878 S.W.2d 42

STATE ex rel. Richard W. SHIELDS, Petitioner, v. James PURKETT, Superintendent, Farmington Correctional

Center, Respondent.

No. 76526.

Supreme Court of Missouri,

En Banc.

June 21, 1994.

Thomas W. Hartmann, Juan D. Keller, St. Louis, for petitioner.

Jeremiah W. (Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

PRICE, Judge.

Petitioner Richard Shields obtained a writ of habeas corpus from this Court on February 22, 1994, for the purpose of reviewing the Missouri Board of Probation and Parole's (MBPP's) denial of parole release on February 11, 1993. Petitioner asserts MBPP improperly applied current parole statutes and regulations in denying parole, instead of applying the statutes and regulations in force at the time of his offenses in 1981. MBPP both has conceded petitioner's liberty interest in the application of the statutes and regulations in force in 1981 and has failed to overcome evidence that it did not apply those provisions. We deny habeas corpus relief and remand Mr. Shields to the custody of the department of corrections but issue a writ of mandamus ordering MBPP to hold another parole hearing and to apply the parole statute and regulations in effect in 1981. As this is an original remedial writ, this Court has jurisdiction. Mo. Const. art. 5, § 4; Rule 84.23.

I.

Petitioner Richard Shields currently is confined within the Farmington Correctional Because you were convicted of an offense in which you attempted to rob three victims at gun point, the Board believes that your release at this time would depreciate the seriousness of the offense committed and/or promote disrespect for the law. The Board further notes that you have previously been convicted on two separate occasions for robbery and therefore there does not appear to be a reasonable probability at this time that you would live and remain at liberty without again violating the law. Therefore, the Board in its discretion has determined to schedule you for another personal parole hearing in January 1995.

Center, under the control and jurisdiction of the Missouri Department of Corrections. On July 8, 1981, he began serving a forty-five year sentence for two convictions of attempted robbery in the first degree. Mr. Shields was considered for parole in July 1983, July 1988, January 1991, and January 1993. Parole was denied each time. The February 11, 1993 denial, which was based on the January 1993 hearing, is the subject of the present action. In its denial, MBPP concluded:

At the time of Mr. Shields' offenses in 1981, the governing parole statute was § 549.261, RSMo 1978 [hereinafter "old statute"]. ¹ Under the authority of § 549.261.4, MBPP promulgated regulations, codified at 13 C.S.R. 80-2 (1980) [hereinafter "old regulations"], to determine a prisoner's eligibility for parole release. In 1982, after Mr. Shields already was incarcerated, § 549.261 was repealed and replaced with § 217.690 [hereinafter "current statute"]. 13 C.S.R. 80-2 also was repealed and replaced subsequent to Mr. Shields' incarceration; the replacement regulations are codified at 14 C.S.R. 80-2 (1992) [hereinafter "current regulations"]. Mr. Shields contends that MBPP improperly followed the current parole statute and regulations, instead of the old parole statute and regulations, at his January 1993 parole hearing.

II.

Both the old and the current parole statutes require the parole board to determine whether the inmate could be released without detriment to the community or to himself. §§ 549.261.1; 217.690.1. The primary distinction between the two statutes is that, once this condition is met, the old statute states that the board "shall" release or parole the inmate, whereas the current statute states that the board "may in its discretion" release or parole the inmate. In 1981, the Eighth Circuit held in Williams v. Missouri Board of Probation and Parole, 661 F.2d 697, 699 (8th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 855 (1982), that the mandatory language of the old statute created a liberty interest in parole once the statutory requirements had been satisfied.

The main distinction between the old and the current regulations, for purposes of this case, is that under the old regulations the deterrent and retributive portion of a forty-five year sentence could be considered to have been served when the inmate had completed approximately 25% of the sentence, whereas under the current regulations the deterrent and retributive portion of a forty-five year sentence may be considered to have been served after 15 years. 13 C.S.R. 80-2.010(5)(A)(5); 14 C.S.R. 80-2.010(4)(H). As Mr. Shields began serving his sentence in July 1981, he has met the minimum of the old regulations, but not that of the current regulations.

Mr. Shields claims that he was entitled to a hearing based on the statute and regulations in effect at the time of his offenses. In this regard, Mr. Shields raises three general issues: first, that MBPP should have applied the parole statute and regulations in effect at the time of his offenses; second, that MBPP improperly applied the current statute and regulations instead; and third, that it was arbitrary and capricious for MBPP to give a reason for denying parole that had been omitted from its earlier parole denials.

III.

Mr. Shields asserts a liberty interest in parole arising from the application of the

                statute and regulations in effect at the time of his offenses. 2  In its brief, MBPP expressly stated that "[r]espondent agrees that petitioner has a liberty interest in the 1981 parole statutes and rules and regulations."   Respondent's Statement, Brief and Argument at 23 (citing 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)).  Because MBPP conceded a liberty interest in parole, we need not address the merits of that issue. 3
                

IV.

Next, we must ascertain which set of statutes and regulations actually were applied by MBPP in the January 1993 hearing. MBPP argues that the burden was upon Mr. Shields to prove "conclusively" that it had applied the current statute and regulations. It is true that, ordinarily, the habeas corpus petitioner has the burden of proof to show that he or she is entitled to relief. Hawk v. Olson, 326 U.S. 271, 279, 66 S.Ct. 116, 120, 90 L.Ed. 61 (1945); McIntosh v. Haynes, 545 S.W.2d 647, 654 (Mo. banc 1977). This also is true in the specialized situation where the respondent is a parole board. See, e.g., Joost v. U.S. Parole Commission, 647 F.Supp. 644, 646 (D.Kan.1986); Dunn v. United States Parole Commission, 630 F.Supp. 795, 796 (D.Kan.1986), rev'd on other grounds, 818 F.2d 742 (10th Cir.1987); Bates v. Murphy, 796 P.2d 116, 120 (Idaho 1990); Stanley v. Dale, 171 W.Va. 192, 298 S.E.2d 225, 227-28 (1982).

However, where there is a deficiency in the record, and where the evidence lies in the hands of the state, this burden shifts to the state. See United States ex rel. Smith v. Yeager, 336 F.Supp. 1287, 1301-02 (D.N.J.1971) (where record was deficient as to voluntariness of petitioner's confession, burden shifted to state), aff'd on other grounds, 451 F.2d 164 (3d Cir.1971), cert. denied, 404 U.S. 859, 92 S.Ct. 112, 30 L.Ed.2d 101 (1971); United States ex rel. Senk v. Brierley, 363 F.Supp. 51, 53-54 (M.D.Pa.1973) (where record was deficient as to validity of arrest, burden shifted to state); see also Goins v. Brierley, 464 F.2d 947, 949 (3d Cir.1972) (stating principle in dicta).

Mr. Shields claims MBPP conceded in its Response to an Order to Show Cause Why Petitioner's Petition for a Writ of Habeas Corpus Should Be Denied that it had used the current statute and regulations. MBPP stated:

Furthermore, it was not an ex post facto violation for the Missouri Board of Probation and Parole to follow the guidelines under § 217.690, RSMo 1986 ... [A]pplying § 217.690, RSMo 1986, did not operate retroactively to the detriment of the petitioner.

(Emphasis added.) Despite their subsequent, vehement arguments to the contrary, this statement stands, at the very least, as evidence that the current statute and regulations were applied. Additionally, MBPP's February 1993 denial contained a significant amount of language identical to that in the current regulations. The current regulations offer as a permissible reason for denying parole that:

Release at this time would depreciate the seriousness of the offense committed or promote disrespect for the law.

14 C.S.R. 80-2.010(9)(A)(1). In its denial, MBPP concluded:

... the Board believes that your release at this time would depreciate the seriousness The old regulations, on the other hand, phrased a similar reason as follows:

of the offense committed and/or promote disrespect for the law.

Release at this time would depreciate the seriousness of the offense committed and would thus be incompatible with the welfare of society.

13 C.S.R. 80-2.020(2)(A)(1). Clearly, the language in MBPP's decision is much more similar to that in the current regulations than it is to that in the old regulations. This, too, is at least evidence that the current regulations were applied.

This evidence is sufficient to shift the burden to MBPP to prove it used the old statute and regulations. It has not met this burden. Therefore, we must assume the current statute and regulations were used by MBPP in its February 1993 denial of parole release. This error, however, does not mandate that Mr. Shields be released on parole.

V.

The liberty interest in parole in Missouri under the old statute and regulations does not arise until after the statutory and regulatory conditions have been satisfied. Williams, 661 F.2d at 698-99; Parton v. Atkins, 641 S.W.2d 129, 131 (Mo.App.1982). Mr. Shields claims that, under the old regulations, MBPP "would have no authority to consider the seriousness, nature and circumstances of the...