Gates v. Russell
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's motion to proceed in forma pauperis [# 2 ] is GRANTED. IT IS FURTHER ORDERED that petitioner's application for writ of habeas corpus is DENIED and DISMISSED without prejudice. IT IS FURTHER ORDERED that no certificate of appealability shall issue. Signed by District Judge Ronnie L. White on November 25, 2014. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:14CV1931 RLW
MEMORANDUM AND ORDER
This matter is before the Court on petitioner's application for writ of habeas corpus.
After reviewing the case, the Court has determined that petitioner is not entitled to relief as the
specific grounds outlined in his petition are not cognizable under habeas corpus. Moreover,
even if petitioner could attain relief under habeas corpus, his petition would have to be
summarily dismissed due to petitioner's failure to fully exhaust his state remedies.
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 1 on
November 14, 2014.
In his application for relief, petitioner alleges that he had a prior
"conditional release" date that the Missouri Department of Corrections has failed to adhere to.
He asserts that he should have been released from confinement on August 3, 2013 ; however, he
still remains incarcerated.
Petitioner pled guilty in Clark County Court to receiving stolen property and to two
counts of arson on August 5, 2008 . See State v. Gates, Case No. 07Hl-CR00267-01 and State v.
The Court notes that because petitioner is a state prisoner, his petition should have been brought
under 28 U.S.C. § 2254 rather than 28 U.S.C. § 2241. See Wayne v. Missouri Bd. of Prob. and
Parole, 83 F.3d 994, 995 (8th Cir. 1996).
Gates, Case No.07Hl-CR00314-0l.
Although petitioner was sentenced to two concurrent
seven-year terms consecutive to one term of five years ' imprisonment on December 9, 2008,
petitioner received a Suspended Execution of Sentence ("SES").
Petitioner' s probation was
revoked on January 6, 2009, and he was subsequently sentenced to the Missouri Department of
Corrections ("MDOC") on March 11 , 2009.
A review of Missouri.Case.Net, https://www.courts.mo.gov/casenet,
petitioner's incarceration has been extended on several occas10ns.
On August 4, 2011 ,
employee/prsioner with bodily fluids," and he was sentenced to three years in MDOC to run
concurrently. See State v. Gates, Case No. 10BU-CR01446-0l.
On December 12, 2011 he was sentenced in Randolph County Court in State v. Gates,
Case No. 11RA-CR00852-01, to an additional three years of incarceration, to run concurrently,
after pleading guilty to damage to "jail property."
On January 27, 2012, petitioner was sentenced to an additional five years for each count
of a two count indictment in State v. Gates, Case No. 11RA-CR00518-01, after he pled guilty to
committing "violence to an employee/inmate of the Department of Corrections."
first five years of petitioner' s sentence was to run concurrently, his second five years was to run
Thus, his release date was extended and petitioner is currently scheduled to be
released from incarceration on April 10, 2018.
On January 21 , 2014, petitioner filed a Rule 91 petition for writ of habeas corpus in St.
Francois County, Missouri, asserting that he should be entitled to additional time credit on his
He requested both "jail-time credit" and "probation-time credit."
On July 13,
2014, the state court found that petitioner was not entitled to the additional time credit.
court found that his request for "jail-time credit" was without merit because his original
sentences for which he had been incarcerated were consecutive and Missouri law requires
MDOC to apply "jail-time credit" only to one sentence when an offender has consecutive
sentences. Mo.Rev.Stat. § 558.031.
The state court found that petitioner was serving his first
consecutive sentence during the time for which he sought "jail-time credit," and therefore it was
not appropriate to grant him credit for that time on his second consecutive sentence.
v. Missouri Dept. of Corr., 275 S.W.3d 313, 319 (Mo.App. 2008).
The court found that
"probation time credit" could not be granted without an order from the sentencing court.
Donaldson v. Crawford, 230 S.W.3d 340, 343 (Mo. 2007).
The state court found that because
no such order was issued, petitioner was not entitled to relief.
Petitioner did not appeal the
judgment, and there is no indication that he filed any further requests for relief in state court with
regard to this matter.
Under 28 U.S.C. § 2254(a), a district court may only entertain a petition for writ of habeas
corpus if the petitioner "is in custody in violation of the Constitution or laws or treaties of the
United States." In other words, grounds that do not state a denial of a constitutional issue are
not cognizable in a federal habeas petition.
See e.g. , Gee v. Groose, 110 F.3d 1346, 1351-52
(8th Cir.1997). The instant petition, relating to "conditional release" and/or "early release" does
not state a denial of a constitutional issue cognizable in this proceeding.
"There is no constitutional or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence."
Greenholtz v. Inmates of Nebraska Penal
and Correctional Complex, 442 U.S. 1, 12 (1979).
A state's parole statutes and regulations,
however, may create a liberty interest that is entitled to protection. Id. at 12; Marshall v.
Mitchell, 57 F.3d 671, 672 (8th Cir. 1995).
The United States Court of Appeals for the Eighth
Circuit has examined this issue and has determined that the "Missouri statutes . . . do not create a
liberty interest protected by the due process clause of the Fourteenth Amendment."
57 F.3d at 672.
Additionally, the Missouri parole guidelines are not mandatory.
See 14 Mo.
C.S.R. 80-2.020(1) ("Parole guidelines indicate the customary range of time to be served before
release for various combinations of offense seriousness and offender characteristics and sentence
length. Mitigating or aggravating circumstances may warrant decisions outside the guidelines.").
So, the parole guidelines do not create a constitutionally protected liberty interest such that
petitioner would be entitled to relief on his habeas petition.
See also Rentschler v. Nixon, 311
S.W.3d 783 (Mo. 2010).
Even if petitioner's argument was cognizable under § 2254, his petition would still be
subject to dismissal.
In the absence of exceptional circumstances, a state prisoner must exhaust
currently available and adequate state remedies before invoking federal habeas corpus
Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973).
Missouri law provides at least three distinct avenues for challenging an "early release" decision:
by bringing a declaratory action against the Parole Board, by filing a state petition for habeas
corpus (and subsequent appeals), or by filing a state petition for writ of mandamus. Wayne v.
Missouri Board of Prob. and Parole, 83 F.3d 994, 996-97 (8th Cir. 1996).
A review of
Missouri.Case.Net reveals that petitioner has not fully exhausted his available state remedies
before bringing this action.
Although petitioner has filed a Rule 91 habeas action in St.
Francois County, Missouri, he did not appeal the state court' s denial of his request for relief
prior to bringing the matter to this Court.
Moreover, there is no indication that petitioner has
brought this matter to the Missouri Courts through a declaratory action against the Parole Board
or through filing a writ of mandamus against Board, relative to his sentence.
For the aforementioned reasons petitioner's application for writ of habeas corpus will be
Additionally, the Court finds that petitioner has failed to make a substantial
showing of the denial of a constitutional right.
In consequence, the Court will not issue a
certificate of appealability.
IT IS HEREBY ORDERED that petitioner's motion to proceed in forma pauperis [#2]
IT IS FURTHER ORDERED that petitioner's application for writ of habeas corpus is
DENIED and DISMISSED without prejudice.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
Dated this 25th day ofNovember, 2014.
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE
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