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Cavallaro v. Denney

United States District Court, W.D. Missouri, St. Joseph Division

September 2, 2014

VINCENT CAVALLARO, Petitioner,
v.
LARRY DENNEY, et al., Defendants.

ORDER

FERNANDO J. GAITAN, Jr., District Judge.

Currently pending before the Court is Petitioner's Amended Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. # 2).

I. BACKGROUND

Cavallaro was initially incarcerated in North Carolina for murder. He escaped and committed two homicides in Missouri. In 1969, Cavallaro was charged with first and second degree murder. On May 5, 1969, Cavallaro pled guilty to these charges and was sentenced to life imprisonment for the first degree murder charge, and 35 years for the second degree murder charge. The sentences were ordered to run consecutively. In 1981, Cavallaro escaped from a Missouri prison. He later turned himself in and pled guilty to the charge of escape and was sentenced to five years on May 7, 1981. Cavallaro was denied parole and/or conditional release in March 2009 by the Missouri Board of Probation and Parole ("MBPP"). Cavallaro challenged this denial in the Circuit Court of Cole County, arguing that he had a liberty interest in the use of statutes and regulations in force at the time of his offense. He also claimed that he had a liberty interest in release on parole. He also claimed that his denial was based on a post-1982 statute and that this violated the Ex Post Facto Clause. The Circuit Court construed the action as a petition for mandamus against the Missouri Board of Probation and Parole and on March 10, 2010, granted summary judgment to the MBPP and the Warden. On September 13, 2011, the Missouri Court of Appeals affirmed the decision of the circuit court. Having properly exhausted all of his remedies on these claims in the state court, Cavallaro argues that this Court has jurisdiction to hear his claims.

Original 1979 Conditional Release Statute[1]

4. (1) A sentence of imprisonment for a term of years shall consist of a prison term and a conditional release term. The conditional release term shall be:
(a) One-third for terms of nine years or less;
(b) Three years for terms between nine and fifteen years;
(c) Five years for terms more than fifteen, including life imprisonment .

Mo.Rev.Stat. § 558.011.4(1) (1979)(emphasis added).

1990 Amendment - Conditional Release Statute

4. (1) A sentence of imprisonment for a term of years shall consist of a prison term and a conditional release term. The conditional release term of any term imposed under section 557.036, RSMo, shall be:
(a) One-third for terms of nine years or less;
(b) Three years for terms between nine and fifteen years;
(c) Five years for terms more than fifteen years; and the prison term shall be the ...

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