Gaston v. Missouri Dept of Corrections

Filing 14

ORDER: ORDERED that: (1) Jefferson City Correctional Center Warden Jeff Norman is substituted as the proper party respondent, and the Missouri Department of Corrections is dismissed as a party to this case; (2) the above-captioned petition for writ of habeas corpus is denied; (3) this case is dismissed with prejudice; and (4) the issuance of a certificate of appealability is denied. Signed on March 9, 2012 by District Judge Greg Kays. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DELBERT GASTON,
Petitioner,
vs.
JEFF NORMAN,1
Respondent.

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Case No. 11-0789-CV-W-DGK-P

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS,
AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
Petitioner, an inmate at the Jefferson City Correctional Center in Jefferson City, Missouri, filed
this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 8, 2011. Petitioner does
not challenge his underlying state convictions or the sentences which were imposed. Rather, petitioner’s
sole ground for relief challenges the manner in which his sentences have been computed by the MDOC.
Specifically, he contends that he is entitled to credit “for time on bond.” (Doc. No. 1, pg. 6).
Respondent has filed a Motion to Dismiss, (Doc. No. 6), arguing as follows: (1) that petitioner’s
claims are unexhausted, and should be dismissed for failure to exhaust state court remedies; or in the
alternative, (2) that because petitioner’s unexhausted claims are without merit, the petition should be
denied with prejudice under 28 U.S.C. § 2254(b)(2). Petitioner has filed reply suggestions. (Doc. No.
9).
FAILURE TO EXHAUST
First, respondent is correct that petitioner has not exhausted his state court remedies. The United
States Supreme Court stated in Rose v. Lundy, 455 U.S. 509, 520 (1982), that “our interpretation of §

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Because Jeff Norman, Warden of Jefferson City Correctional Center, is petitioner’s custodian,
he will be substituted as the appropriate respondent in this case, and the Missouri Department of
Corrections will be dismissed as a party.

2254(b) and (c) provides a simple and clear instruction to potential litigants: before you bring any claims
to federal courts, be sure that you first have taken each one to state court.” When a Missouri prisoner
wishes to challenge the calculation of credit for time served, he or she may bring an action for a
declaratory judgment in the state courts. Collar v. MDOC, 314 S.W.3d 386, 389 (W.D. Mo. 2010). He
or she also may seek a writ of mandamus. State v. Burgess, 128 S.W.3d 907, 909 (W.D. Mo. 2004).
Petitioner has failed to present evidence that he has pursued either a declaratory judgment or a
writ of mandamus in the state courts. It does appear that he has filed a petition for a writ of habeas corpus
in the Circuit Court of Cole County, Missouri. (Doc. No. 6, Respondent’s Exhibit D). The state habeas
petition alleges the same ground for relief as this federal habeas petition. However, the state habeas
petition, which was submitted to the Cole County Circuit Court on November 14, 2011 for consideration,
has not yet been ruled on. Consequently, petitioner has not exhausted state court remedies before filing
this federal habeas petition.
GROUND FOR RELIEF NOT COGNIZABLE
Even though petition has failed to exhaust his state court remedies, the Court may proceed to
review the merits of an unexhausted petition. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”). Such is appropriate in this case because petitioner’s sole
ground for relief is plainly not cognizable in a federal habeas corpus proceeding.
Petitioner’s sole ground for relief is that he is entitled to credit for time served while on bond.
However, the United States Court of Appeals for the Eighth Circuit has held that jail time credit is a
matter of legislative grace and not a constitutional guarantee. Patino v. South Dakota, 851 F.2d 1118,
1120 (8th Cir. 1988) (per curiam). Therefore, the interpretation of a state crediting statute is a state matter
and “not a proper function of a federal habeas corpus court under its habeas jurisdiction.” Travis v.

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Lockhart, 925 F.2d 1095, 1097 (8th Cir. 1991).
Petitioner’s sole ground for relief is denied, and this case will be dismissed, with prejudice.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c), the Court may issue a certificate of appealability only “where a
petitioner has made a substantial showing of the denial of a constitutional right.” To satisfy this standard,
a petitioner must show that a “reasonable jurist” would find the district court ruling on the constitutional
claim(s) “debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 276 (2004). Because petitioner has not
met this standard, a certificate of appealability will be denied. See 28 U.S.C. § 2254, Rule 11(a).
ORDER
Accordingly, it is ORDERED that:
(1) Jefferson City Correctional Center Warden Jeff Norman is substituted as the proper party
respondent, and the Missouri Department of Corrections is dismissed as a party to this case;
(2) the above-captioned petition for writ of habeas corpus is denied;
(3) this case is dismissed with prejudice; and
(4) the issuance of a certificate of appealability is denied.

/s/ Greg Kays
GREG KAYS
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated: March 9, 2012.

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