Campbell v. Wallace

Filing 6

MEMORANDUM AND ORDER re: 2 ORDERED that petitioner's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. FURTHER ORDERED that no order to show cause shall issue at this time as to respondents, because it appears that petitioner did not exhaust available state remedies before invoking federal habeas corpus jurisdiction. 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 applic ation 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. ( Response to Court due by 9/26/2013.). Signed by District Judge Jean C. Hamilton on 8/27/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MAURICE CAMPBELL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:13-CV-1445-TCM

MEMORANDUM AND ORDER
This matter is before the Court upon the application of Maurice Campbell for
leave to commence this action without payment of the required filing fee. See 28
U.S.C. § 1915(a). Upon consideration of the financial information provided with the
application, the Court finds that petitioner is financially unable to pay any portion of
the filing fee. Therefore, the Court grants petitioner leave to proceed in forma
pauperis.
Petitioner, an inmate at the Southeastern Correctional Center, seeks habeas
corpus relief pursuant to 28 U.S.C. § 2254, following the denial of parole on January
12, 2012. Petitioner asserts, “On 12/21/11 petitioner [was] given a parole hearing and
[was] denied release on 1/12/12 with a scheduled reconsideration hearing for
12/06/13.”

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.
Not only does petitioner state that he has reconsideration hearing scheduled for
December 2013, but 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.
Therefore,
IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in
forma pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that no order to show cause shall issue at this
time as to respondents, because it appears that petitioner did not exhaust available
state remedies before invoking federal habeas corpus jurisdiction.

2

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
application 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.
Dated this 27th day of August, 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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