Warren v. Norman et al

Filing 7

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by Honorable Stephen N. Limbaugh, Jr on 6/30/11. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LEE VERNON WARREN,
Petitioner,
v.
JEFF NORMAN and the MISSOURI
BOARD OF PROBATION AND
PAROLE,
Respondents.

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No. 4:11CV1028 TCM

MEMORANDUM AND ORDER
On June 9, 2011, the Court ordered petitioner to show cause why his petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254 should not be dismissed for
failure to exhaust available state remedies.
Petitioner seeks to challenge the decision of the Missouri Board of Probation
and Parole (the “Board”) denying petitioner release from confinement on August 12,
2010. To properly exhaust available state remedies before bringing a federal petition
for habeas corpus, petitioner must have either brought a declaratory action against the
Board, filed a state petition for habeas corpus, or filed a petition for writ of mandamus
in state court. Wayne v. Missouri Bd. of Probation and Parole, 83 F.3d 994, 996-97
(8th Cir. 1996).
In his response to the Court’s order to show cause, petitioner says that he did
not attempt to exhaust his available state remedies before bringing this action.
Petitioner says that he has tried to appeal from the Board’s decisions on past

occasions, and he apparently believes such actions are futile. However, petitioner’s
belief that exhausting available state remedies is futile does not excuse his failure to
do so. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973)
(exhaustion is mandatory “[i]n the absence of exceptional circumstances.”). As a
result, the Court will dismiss this action without prejudice.
Furthermore, petitioner has failed to make a substantial showing of the denial
of a constitutional right, which requires a demonstration “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right.” Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation
omitted). Thus, the Court will not issue a certificate of appealability. 28 U.S.C.
§ 2253(c).
Accordingly,
IT IS HEREBY ORDERED that this action is DISMISSED without
prejudice.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
Dated this 30th day of June, 2011.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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