Biddy v. Missouri Department of Corrections et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that, at this time, no order to show cause shall issue to respondents, because it appears that petitioner did not exhaust his available state remedies. IT IS FURTHER ORDERED that petitioner shall show cause within thirty (30) days of the date of this Order as to why the Court should not dismiss the instant petition for failure to exhaust available state remedies. Petitioners failure to file a show cause response shall result in the denial of the instant habeas corpus petitionand the dismissal of this action, without prejudice and without further notice to him. Show Cause Response due by 9/30/2013. Signed by District Judge Rodney W. Sippel on 8/30/13. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GEORGE RANDALL BIDDY,
Petitioner,
v.
MISSOURI DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.

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No. 4:13-CV-1364-RWS

MEMORANDUM AND ORDER TO SHOW CAUSE
This matter is before the Court on George Randall Biddy’s petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, the Court
will order petitioner to show cause as to why this action should not be dismissed for
failure to exhaust available state remedies.
Petitioner, an inmate at the Farmington Correctional Center, was convicted in
1987 of forcible rape, burglary, and making a false declaration. Petitioner asserts
that, on March 24, 2010, at his third parole hearing, he was granted a consecutive
parole release date of May 5, 2013. On September 7, 2012, however, the release date
was cancelled, because petitioner had not completed the Missouri Sexual Offender
Program (“MOSOP”). Petitioner argues that (1) he was not afforded notice or a

hearing before the revocation of his release date; (2) respondents refused to allow him
to participate in MOSOP; and (3) he should not be required to complete MOSOP,
because his offense occurred in 1986, prior to the statute’s enactment. Petitioner
states that he has exhausted the prison grievance process, and that “there is no other
avenue known to [him] with which to obtain the relief he is requesting.”
In the absence of exceptional circumstances, a state prisoner must exhaust
currently available and adequate state remedies before invoking federal habeas corpus
jurisdiction. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973).
State remedies are ordinarily not considered exhausted if an individual may
effectively present his claim to the state courts by any currently available and
adequate procedure.
It does not appear that petitioner has sought review of the Missouri Board of
Probation and Parole’s actions in any state court proceeding. 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 Bd. of Prob. and
Parole, 83 F.3d 994, 996-97 (8th Cir. 1996). As such, it appears that petitioner has
available procedures that he must exhaust prior to invoking this Court’s habeas
corpus jurisdiction.
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Therefore,
IT IS HEREBY ORDERED that, at this time, no order to show cause shall
issue to respondents, because it appears that petitioner did not exhaust his available
state remedies.
IT IS FURTHER ORDERED that petitioner shall show cause within thirty
(30) days of the date of this Order as to why the Court should not dismiss the instant
petition for failure to exhaust available state remedies. Petitioner’s failure to file a
show cause response shall result in the denial of the instant habeas corpus petition
and the dismissal of this action, without prejudice and without further notice to him.
Dated this 30th day of August, 2013.

_________________________________
UNITED STATES DISTRICT JUDGE

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