United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Harry Little’s
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. [Doc. 1.] Respondent Ellis McSwain, Jr. filed a
response. [Doc. 8.] Little filed replies to the response.
[Docs. 11, 12.] The parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 14.] For
the reasons set forth below, Little’s Petition for Writ
of Habeas Corpus will be denied.
was convicted of second-degree murder in May 1977. He was
sentenced to life in the Missouri Department of Corrections
and granted parole in 2002. According to the most recent
information provided to the Court, Little remains on parole.
when Little was granted parole, he was subject to the parole
statute, Mo. Rev. Stat. § 217.690. The statute was
amended in 2005 to give the Parole Board discretionary
authority to require the payment of a fee, not to exceed
sixty dollars per month, from every offender placed under
board supervision on probation, parole, or conditional
release, to waive all or part of any fee, to sanction
offenders for willful nonpayment of fess, and to contract
with a private entity for fee collection services. Mo. Rev.
Stat. § 217.690.3. The law became effective on August
28, 2005. The Missouri Department of Corrections established
regulations to govern procedures for the collection of the
fee. The fee labeled as an “intervention fee, ”
is required to be included in the conditions of release for
those placed on parole. See Mo. Code Regs. Ann. tit.
14, § 80-5.020(1)(A) (2016). Parolees may be exempt from
paying intervention fees within the first ninety (90) days of
release to parole, if participating in specialty courts, or
if involved in a deferred prosecution. Mo. Code Regs. Ann.
tit. 14, § 80-5.020(1)(E) (2016). Parolees may obtain a
waiver in whole, or in part, because of having insufficient
income. Mo. Code Regs. Ann. tit. 14, § 80-5.020(1)(H)
(2016). Willful nonpayment of the fee can may result in any
of the following sanctions to be imposed: (1) receipt of
written reprimand, (2) travel restriction, (3) community
service, (4) increased level of supervision, and (5) shock
detention. Mo. Code Regs. Ann. tit. 14, §
80-5.020(1)(I)(5)(A)-(E) (2016). To date, the Court has not
received any information that Little has been found to be in
willful nonpayment of the fee. Willful nonpayment means that
“the offender knowingly refuses to make payment and
there is evidence that funds have been available to the
offender to make the required payments.” Mo. Code Regs.
Ann. tit. 14, § 80-5.010(1)(D) (2016).
receiving notice of this potential fee, Little brought suit
in the Circuit Court of the City of St. Louis and the trial
judge granted the state’s motion for judgment on the
pleadings. The Missouri Court of Appeals affirmed the trial
court’s judgment. Little brings this case to challenge
the constitutionality of § 217.690.3, as an ex post
facto law prohibited by the United States Constitution.
Respondent contends that Little lacks standing, because he
has not been punished for failure to abide by §
217.690.3. Further, Respondent contends that Little’s
claim lacks merit, because § 217.690.3 is not
retrospective in that it does not change the effect of
Petitioner’s conviction and it does not increase his
Standard of Review
writ of habeas corpus stands as a safeguard against
imprisonment of those held in violation of the law. Judges
must be vigilant and independent in reviewing petitions for
the writ, a commitment that entails substantial judicial
resources.” Harrington v. Richter, 562 U.S.
86, 91 (2011). “In general, if a convicted state
criminal defendant can show a federal habeas court that his
conviction rests upon a violation of the Federal
Constitution, he may well obtain a writ of habeas corpus that
requires a new trial, a new sentence, or release.”
Trevino v. Thaler, 133 S.Ct. 1911, 1917 (2013). The
Anti-Terrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2254 (AEDPA) applies to all petitions for
habeas relief filed by state prisoners after this
statute’s effective date of April 24, 1996. Lindh
v. Murphy, 521 U.S. 320, 326-29 (1997). A person
currently released on parole is in custody for purposes of
§ 2254. See Jones v. Cunningham, 371 U.S. 236,
241-42 (1963) (a person placed on parole is still in custody
under an unexpired sentence).
conducting habeas review pursuant to 28 U.S.C. § 2254, a
federal court is limited to deciding whether a claim that was
adjudicated on the merits in state court proceedings (1)
resulted in a decision that is “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court, or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
at the State court proceedings.” 28 U.S.C. §
2254(d). A determination of a factual issue made by a state
court is presumed to be correct unless the petitioner
successfully rebuts the presumption of correctness by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).
purposes of § 2254(d)(1), the phrase “clearly
established federal law refers to the holdings, as opposed to
the dicta, of [the Supreme] Court’s decisions as of the
time of the relevant state court decision.” Lockyer
v. Andrade, 538 U.S. 63, 71-72 (2003). “In other
words, clearly established federal law under §
2254(d)(1) is the governing legal principle or principles set
forth by the Supreme Court at the time the state court
renders its decision.” Id. To obtain habeas
relief, a habeas petitioner must be able to point to the
Supreme Court precedent which he thinks the state courts
acted contrary to or unreasonably applied. Buchheit v.
Norris, 459 F.3d 849, 853 (8th Cir. 2006).
court’s decision is “contrary to” clearly
established Supreme Court precedent “if the state court
either ‘applies a rule that contradicts the governing
law set forth in [Supreme Court] cases’ or
‘confronts a set of facts that are materially
indistinguishable from a decision of [the] Court and
nevertheless arrives at a result different from [the]
precedent.’” Penry v. Johnson, 532 U.S.
782, 792 (2001) (citing Williams v. Taylor, 529 U.S.
362, 405-406 (2000)).
court decision is an unreasonable application of clearly
established Supreme Court precedent if it correctly
identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s
case. Id. (citing Williams, 529 U.S. at
407-408). “A federal habeas court making the
unreasonable application inquiry should ask whether the state
court’s application of clearly established federal law
was objectively reasonable.” Penry, 532 U.S.
at 793. “A state court decision involves ‘an
unreasonable determination of the facts in light of the
evidence presented in the state court proceedings, ’ 28
U.S.C. § 2254(d)(2), only if it is shown that the state
court’s presumptively correct factual findings do not
enjoy support in the record.” Evanstad v.
Carlson, 470 F.3d 777, 782 (8th Cir. 2006). A
“readiness to attribute error is inconsistent with the
presumption that state courts know and follow the law.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
AEDPA’s highly deferential standard demands that state
court decisions be given the benefit of the doubt.
habeas petition presents one claim for review. He contends
that the 2005 revision to § 217.690 and the newly
adopted regulations authorized by the statute’s
revision operates as an ex post facto law and
increases the punishment of the underlying offenses, which
violate the United States Constitution. Respondent contends
that Little does not have standing to bring this ...