Thompson v. Armontrout, 85-0989-CV-W-5-P.

• Citation: 647 F. Supp. 1093
• Decision Date: 17 September 1986
• Docket Number: No. 85-0989-CV-W-5-P.,85-0989-CV-W-5-P.
• Parties: Douglas W. THOMPSON, Petitioner, v. Bill ARMONTROUT, Respondent.
• Court: U.S. District Court — Western District of Missouri

647 F. Supp. 1093

Douglas W. THOMPSON, Petitioner, v. Bill ARMONTROUT, Respondent.

No. 85-0989-CV-W-5-P.

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

September 17, 1986.

Mark Flaherty, Kansas City, Mo., for petitioner.

Steven Hawke, Office of Missouri Atty. Gen., Kansas City, Mo., for respondent.

OPINION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

SCOTT O. WRIGHT, Chief Judge.

Petitioner's pro se habeas corpus petition filed pursuant to 28 U.S.C. § 2241 and 2254 (1976), seeks relief from a 1985 decision of the Missouri Board of Probation and Parole denying petitioner parole release. Petitioner's "First Amended Petition for Writ of Habeas Corpus" sets forth one claim in support of relief. Petitioner contends that the records of the Missouri Board of Probation and Parole reflect that its decision to deny petitioner release upon parole was based exclusively upon the vindictiveness of the sentencing judge and the parole board against petitioner because petitioner had successfully challenged his state court conviction for first degree murder. Petitioner contends that his constitutional right to due process of law was violated by the Parole Board's decision. Because petitioner raised the above ground in his petition for writ of habeas corpus in state court, respondent has conceded exhaustion of petitioner's available state remedies.

The Court has determined that no further evidentiary hearings are required in this case and that the dispute can be resolved on the basis of the record. Brown v. Lockhart, 781 F.2d 654, 656 (8th Cir. 1986).

A brief summary of the facts underlying petitioner's ground for relief indicates that petitioner has been convicted three times, in three successive trials, of the 1961 first degree murder of a Cape Girardeau, Missouri police officer. Petitioner first was convicted and sentenced to death in the Circuit Court of Bollinger County, Missouri, in December, 1961. Although that conviction was affirmed on direct appeal, State v. Thompson, 363 S.W.2d 711 (Mo. banc 1963), petitioner eventually obtained a reversal of the conviction through a Rule 27.26 proceeding. State v. Thompson, 396 S.W.2d 697 (Mo. banc 1965). In 1966, petitioner was retried and reconvicted in Mississippi County, Missouri and sentenced to life imprisonment. Petitioner was incarcerated in the Missouri State Penitentiary pursuant to the life sentence until November 21, 1980, when petitioner was released on parole to a detainer placed upon him by the State of California. Four months later, petitioner was released from incarceration in California pursuant to a writ of habeas corpus on March 24, 1981. Petitioner remained under parole supervision of the Missouri Board of Probation and Parole until January, 1983, when his second conviction was overturned by the United States Court of Appeals for the Eighth Circuit. Thompson v. White, 661 F.2d 103 (8th Cir.1981), vacated and remanded, 456 U.S. 941, 102 S.Ct. 2003, 72 L.Ed.2d 463 (1982), aff'd on remand, 680 F.2d 1173 (8th Cir.1982), cert. denied, 459 U.S. 1177, 103 S.Ct. 830, 74 L.Ed.2d 1024 (1983). Once again, the State of Missouri decided to retry petitioner for first degree murder. Petitioner was convicted for the third time on the murder charge on December 13, 1984, and was sentenced to life imprisonment for the second time. Upon reconviction in 1984, petitioner was returned to the Missouri State Penitentiary, where he presently is incarcerated.

As soon as petitioner was reconvicted in 1984, he began challenging that reconviction. See Petitioner's Exhibit 4. The Missouri Board of Probation and Parole originally took the position that they would defer a decision concerning petitioner's request for release on parole pending a resolution of petitioner's challenge to his reconviction in state court. The Board's position is reflected in their review of petitioner's case on January 22, 1985 (Petitioner's Exhibit 7); their letter to petitioner on February 4, 1985 (Petitioner's Exhibit 5); their decision of June 14, 1985 (Petitioner's Exhibits 8 and 12); the letter to petitioner's state court attorney on June 27, 1985 (Petitioner's Exhibit 11); and a note to Dick Moore, Chairman of the Missouri Board of Probation and Parole, on August 15, 1985 (Petitioner's Exhibit 10).

Only after petitioner's state court attorney informed the Board that their decision to defer action on petitioner's parole request pending court resolution of the issues was in direct conflict with the Board's own rules and regulations did the Board issue an opinion supposedly considering petitioner for parole release. See Petitioner's Exhibit B. That decision, dated September 18, 1985, was based on the same parole hearing as the decision of June 14, 1985. The Board's decision stated as follows:

In consideration of the offense for which you stand convicted and your prior criminal conviction record, in the opinion of the Board your release at this time would not be in the best interest of society. When you were paroled to your custody detainer, November 21, 1980, it was not the intent of the Board that you would be released from confinement. It was, in fact, the belief of the Board that because of your five to life sentence in the state of California that you would be incarcerated in that state for an extended period of time.

Petitioner's Exhibit 3; Respondent's Exhibit K-2.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment prevents an increased sentence after a criminal defendant has successfully challenged a conviction and has been reconvicted when the increased sentence is motivated by vindictiveness on the part of the sentencing judge. The Court stated:

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

Id. at 725-726, 89 S.Ct. at 2080-2081.

In Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), the Supreme Court indicated that relevant conduct or events that occurred subsequent to the original sentencing proceedings are those that throw "new light upon the defendant's `life, health, habits, conduct, and mental and moral propensities.'" Id. 104 S.Ct. at 3225-26 (Powell, J. concurring), quoting North Carolina v. Pearce, 395 U.S. at 723, 89 S.Ct. at 2079. Due process bars an increased sentence where no intervening conduct or events justifies the increase, United States v. Whitley, 734 F.2d 994, 996 (4th Cir.1984), or where no objective information concerning petitioner's conduct or culpability justifying the increase has been received. Texas v. McCullough, ___ U.S. ___, 106 S.Ct. 976, 980-981, 89 L.Ed.2d 104 (1986).

While the above decisions refer to vindictiveness and retaliatory motive on the part of a sentencing judge in imposing a more severe sentence upon reconviction, the dictates of due process require that the same standard apply to the action of the Parole Board under the facts set forth herein. Initially, the due process considerations set forth in Pearce apply to situations in which the state seeks to punish a criminal defendant for having exercised his post-conviction right of review. North Carolina v. Pearce, 395 U.S. at 726, 89 S.Ct. at 2081. When an improper retaliatory motive or vindictiveness results in an increase in punishment imposed after a conviction or retrial, due process has been offended regardless of the form of that increased punishment (be it imprisonment, suspended sentence with probation, or fine). See United States v. Gilliss, 645 F.2d 1269, 1283 (8th Cir.1981). Thus, the Pearce presumption of vindictiveness may apply to second sentences which are more severe in terms of parole eligibility. If the judge had sentenced petitioner to life imprisonment without possibility of parole, such a sentence would be a fortiori more severe for due process purposes than the previous life sentences. See, e.g., United States v. Bello, 767 F.2d 1065, 1068 (4th Cir.1985); United States v. Gilliss, 645 F.2d at 1283; United States v. Hawthorne, 532 F.2d 318, 323-324 (3d Cir.), cert. denied, ...