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Little v. McSwain

United States District Court, E.D. Missouri, Eastern Division

August 3, 2016

HARRY LITTLE, Petitioner,
v.
ELLIS MCSWAIN, JR., Respondent.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background

         Little 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.

         In 2002 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).

         Upon 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 punishment.

         II. Standard of Review

         “The 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).

         In 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).

         For 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).

         A state 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)).

         A state 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. Id.

         III. Discussion

         Little’s 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 ...


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