Williams v. Cassady

Filing 7

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the petitioners application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED without prejudice. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.An Order of Dismissal will be filed with this Memorandum and Order. Signed by District Judge Catherine D. Perry on July 26, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANDRE DIVIANO WILLIAMS,
Petitioner,
v.
JAY CASSADY,
Respondent.

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No. 4:13CV1139 CDP

MEMORANDUM AND ORDER
This matter is before me on petitioner’s amended petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Because it is plain from the face of the petition
that petitioner has not exhausted available state remedies, I will dismiss this action
without prejudice.
Petitioner was sentenced to two concurrent sentences of twenty years’
imprisonment on December 2, 2005, for drug trafficking charges. State v. Williams,
No. 22041-02931-01 (22nd Jud. Cir.); State v. Williams, No. 22041-02386-01 (22nd
Jud. Cir.). Petitioner alleges that he was granted parole, and he claims that his parole
was revoked by the Missouri Board of Probation and Parole on August 22, 2012, for
alleged drug charges.
Petitioner argues that he was denied his rights under the Due Process Clause
during his parole revocation hearing because he was not given access to the police or

laboratory results, because he was not able to examine the laboratory technician that
made the report, and because he was unable to present witnesses to support his
defense.
Petitioner states in the petition that he has not brought this claim before any
state court or in any state proceeding. He states that this is his first attempt to present
this claim to any court.
The Eighth Circuit Court of Appeals has held that a claim for unconstitutional
revocation of parole is cognizable in § 2254 proceedings and “failure to exhaust
available state court remedies would require dismissal of [the] action” under Rule 4
of the Rules Governing § 2254 Cases. Veneri v. State of Mo., 734 F.2d 391, 393
(8th Cir. 1984). Missouri law provides at least three distinct avenues for challenging
a parole decision: by bringing a declaratory action against the Board, by filing a state
petition for habeas corpus, or by filing a petition for writ of mandamus. Wayne v.
Missouri Board of Probation and Parole, 83 F.3d 994, 996-97 (8th Cir. 1996).
Because petitioner has failed to exhaust state remedies, the Court will dismiss this
case without further proceedings. Habeas petitioners are required to diligently pursue
their rights in state court.

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Finally, petitioner has failed to demonstrate that jurists of reason would find
it debatable whether his claims are exhausted. Therefore, I will not issue a certificate
of appealability. 28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that the petitioner’s application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED without prejudice.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
An Order of Dismissal will be filed with this Memorandum and Order.
Dated this 26th day of July, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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