Thompson v. Missouri Bd. of Probation and Parole, 94-1539

• Decision Date: 21 November 1994
• Docket Number: No. 94-1539,94-1539
• Citation: 39 F.3d 186
• Parties: Douglas Wayne THOMPSON, Appellant, v. MISSOURI BOARD OF PROBATION AND PAROLE; Gary L. Henman, Warden, U.S.P. Leavenworth, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 186

39 F.3d 186

Douglas Wayne THOMPSON, Appellant, v. MISSOURI BOARD OF PROBATION AND PAROLE; Gary L. Henman, Warden, U.S.P. Leavenworth, Appellees.

No. 94-1539.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1994.

Decided Oct. 21, 1994.

Rehearing Denied Nov. 21, 1994.

Grant Gorman, St. Louis, MO (argued) for appellant.

Stacy Anderson, Jefferson City, MO, for appellees.

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and BEAM, Circuit Judges.

RICHARD S. ARNOLD, Chief Judge.

Douglas Wayne Thompson appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. We affirm the judgment of the District Court. ¹

I.

Douglas Wayne Thompson has an extensive criminal-conviction history and an extensive history of seeking collateral relief, most of which does not need to be repeated here. The tangle of prior proceedings is ably explained in the clear Report and Recommendation of Magistrate Judge Catherine Perry, which the District Court approved.

During an escape from a California prison in 1961, Thompson went on a crime spree that ended in Missouri after he killed a police officer, Herbert Goss, and another man, Raymond Glover, in separate incidents and separate counties. See State v. Thompson, 723 S.W.2d 76, 78-81 (Mo.App.1987).

Thompson was first tried for Glover's murder, convicted in Butler County, Missouri, and sentenced to life. He appealed this conviction, abandoned the appeal, and then 15 years later filed a Missouri Supreme Court Rule 27.26 motion. Thompson's motion was denied, but on appeal that determination was reversed, and the case remanded for an evidentiary hearing. Thompson v. State, 569 S.W.2d 380 (Mo.App.1978). After an evidentiary hearing the trial court again denied the motion, and this time the lower court was affirmed. Thompson v. State, 651 S.W.2d 657 (Mo.App.1983).

In addition to the Butler County conviction, the defendant has been tried three times for the first-degree murder of Officer Goss. Each time a jury found him guilty. After his first trial he was sentenced to death. Although the conviction was affirmed on direct appeal, State v. Thompson, 363 S.W.2d 711 (Mo.) (en banc), appeal dismissed, cert. denied, 375 U.S. 47, 84 S.Ct. 168, 11 L.Ed.2d 109 (1963), Thompson was able to get that sentence vacated through a Rule 27.26 proceeding. The prosecutor had failed to disclose to the Court or to the defense material ballistic evidence found at the scene of the crime. State v. Thompson, 396 S.W.2d 697 (Mo.1965) (en banc).

After his second trial, in 1966, Thompson was sentenced to life imprisonment. This second sentence was vacated when this Court found that Thompson's jury had been unconstitutionally selected. Thompson v. White, 661 F.2d 103 (8th Cir.1981), vacated and remanded for reconsideration, 456 U.S. 941, 102 S.Ct. 2003, 72 L.Ed.2d 463 (1982), sentence vacated 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). Before this sentence was vacated, however, in 1980, the Missouri Parole Board released Thompson on parole to a detainer placed upon him by the State of California so that he could complete his 1961 California sentence. Thompson served only a few months in California before he was successful in yet another petition for habeas relief and was released from California custody. He was still, at this time, considered to be a Missouri parolee. See Thompson v. Missouri Bd. of Parole, 929 F.2d 396, 397 (8th Cir.1991). Thompson remained under the parole supervision of the Missouri Board of Probation and Parole until January 1983, when his second conviction for the murder of Officer Goss was overturned. It appears that after his second conviction was vacated he was still under parole supervision for Glover's murder. See State v. Thompson, 723 S.W.2d 76, 90 (Mo.App.1987).

The State of Missouri tried Thompson again for the murder of Officer Goss; this time the trial took place in Scott County, Missouri. In December 1984 a jury returned a verdict of guilty of first-degree murder, and in January 1985 Thompson was sentenced to life imprisonment. It is that third conviction that this petition for habeas corpus attacks.

Thompson's first challenge to this third conviction took place when he filed a petition for a state writ of habeas corpus. This petition, seeking relief from a Missouri Board of Probation and Parole decision denying Thompson parole, was initially granted. However, when it was transferred to the Missouri Supreme Court, it was denied. Thompson, supra, 723 S.W.2d at 90. Thompson then filed a federal petition for writ of habeas corpus under 28 U.S.C. Secs. 2241 and 2254, seeking relief from the Board's decision denying parole, a decision based on the 1984 Scott County conviction that petitioner now attacks. The District Court found the Board's refusal to grant parole was vindictive and granted habeas relief. Thompson v. Armontrout, 647 F.Supp. 1093, 1096 (W.D.Mo.1986). We affirmed the District Court's decision to grant the petition, but the only relief granted was release on parole. Thompson v. Armontrout, 808 F.2d 28, 33 (8th Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987).

As directed by our decision, Thompson was released on parole in 1986. Before the year was over, he informed the Parole Board that he would no longer report to it because, in his view, he had served the maximum five-year parole term. In 1988, Thompson pleaded guilty to charges of bank robbery, and he is now serving a twenty-year prison term in Minnesota. The Missouri officials lodged a detainer with the State of Minnesota, claiming Thompson would be subject to the supervision of the Missouri Parole Board after completion of his term in Minnesota. Thompson then filed a petition for a writ of habeas corpus in the District of Minnesota alleging that the Missouri detainer was the product of vindictiveness, and requesting that he be granted complete release from Missouri's custody. The District Court denied this petition. We agreed with the District Court that the detainer was not vindictive, and that Thompson was not entitled to an unconditional release from Missouri custody. However, we did hold that Thompson was entitled to parole credit for the two years' prison time he served because of the State's earlier vindictive denial of parole; thus, Thompson was eligible for parole consideration. Thompson v. Missouri Bd. of Parole, 929 F.2d 396, 401-02 (8th Cir.1991).

This appeal comes to us after the District Court adopted the magistrate judge's report and recommendation denying Thompson's newest petition for habeas corpus under 28 U.S.C. Sec. 2254. Thompson urges this Court to hold that the District Court erred when it concluded that only one conviction could be challenged in a single petition, that Thompson had abused the writ, and that even if he had not abused the writ, his claims were procedurally barred and without merit.

II.

The first issue the District Court considered was which conviction, the Scott or Butler County conviction, Thompson was seeking to challenge. After careful review of the original petition, the first amended petition, and the second amended petition, the Court determined that Thompson intended to challenge his 1984 Scott County conviction for murdering Officer Goss. The Court further determined that if Thompson wanted to challenge the Butler County conviction, he would have to file a separate petition. Thompson asserts this was error. We disagree.

The plain language of 28 U.S.C. Sec. 2254, Rule 2(d) states:

A petition shall be limited to the assertion of a claim for relief against the judgment or judgments of a single state court (sitting in a county or other appropriate political subdivision). If a petitioner desires to attack the validity of the judgments of two or more state courts under which he is in custody or may be subject to future custody, as the case may be, he shall do so by separate petitions.

The rule clearly does not allow Thompson to challenge both the Scott County conviction and the Butler County conviction in one Sec. 2254 petition. Additionally, we do not question the District Court's determination that this petition seeks habeas relief from the December 13, 1984, Scott County Circuit Court judgment. Therefore, we will address only the issues that arise from that trial.

III.

The State argues that the District Court should have dismissed this petition under the "escape rule." ²

The "escape rule" generally stands for the proposition that "a criminal defendant who by his escape removes himself from the court's power and process and remains at large during the pendency of his appeal...