Harvey v. Wallace

Filing 5

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. A separate Order of Dismissal will be filed forthwith. Signed by District Judge John A. Ross on 3/7/14. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LEWIS HARVEY,

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Petitioner,
v.
IAN WALLACE,
Respondent.

No. 4:13CV2568 JAR

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner has not exhausted his available state remedies, and the Court will
summarily dismiss the petition. See 28 U.S.C. § 2254, Rule 4.
In 1979, petitioner was convicted by a jury of first-degree murder, and the state court
sentenced him to life in prison with the availability of parole. Petitioner was recently denied
parole by the Missouri Board of Probation and Parole (the “Board”). Petitioner claims that the
Board invoked a 1994 statute when it decided to deny parole, in violation of the Ex Post Facto
Clause of the United States Constitution.
Petitioner states in the petition that he did not present this claim to any state court. 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). 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).

The Court gav petitioner an opportu
T
ve
r
unity to expla whether he used any of these
ain
available state remed before bringing this federal petit
e
dies
tion, and pet
titioner failed to respond As
d.
a result, the Court wi dismiss th action without further proceeding
t
ill
his
r
gs.
Finally, petiti
ioner has failed to demon
nstrate that j
jurists of rea
ason would f
find it debata
able
whether the petition is unexhaust
t
i
ted. Thus, th Court wil not issue a certificate o appealability.
he
ll
of
28 U.S.C ' 2253(c).
C.
Accordingly,
A
IT IS HEREBY ORDER
T
RED that thi action is D
is
DISMISSED without pr
D
rejudice
IT IS FURTH
T
HER ORDE
ERED that the Court wi not issue a certificate of appealabi
t
ill
ility.
A separate Or
rder of Dism
missal will be filed forthw
e
with.
Dated this 7th day of Mar 2014.
D
h
rch,

JOHN A ROSS
A.
UNITED STATES D
D
DISTRICT J
JUDGE

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