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)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION LEWIS HARVEY, ) ) ) ) ) ) ) ) ) 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 -2-

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