United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court upon the motion of petitioner
Elliot Stearns for leave to commence this action without
payment of the filing fee. (Docket No. 2). Having reviewed
petitioner's financial affidavit, the Court concludes
that petitioner lacks sufficient funds to pay the filing fee,
and will grant the motion. Petitioner will also be given
leave to file an amended petition.
instant petition, petitioner avers that he is presently
confined in the Southeast Missouri Mental Health Center after
pleading not guilty by reason of insanity in state court in
Phelps County, Missouri. Petitioner raises the following four
grounds for relief:
1. Counsel was ineffective for causing petitioner to be
declared mentally unfit to stand trial;
2. “Entrapment, ” in that defense counsel coerced
petitioner to plead not guilty by reason of insanity;
3. “Illegal confinement on the grounds of enticement
and solicitation, ” in that the sole plea offered was
not guilty by reason of insanity; and 4. “Soled into
Mondo Bondage” in that “I'm not progressing
I'm digressing I'm going back to the ape
(Docket No. 1 at 5-10).
Court has been unable to locate any information about
petitioner on Missouri Case.Net, the state of Missouri's
online docketing system. However, based upon the averments in
the instant petition, petitioner was not
“convicted” of a crime; he was found not guilty
by reason of insanity and committed to the custody of the
state of Missouri. He therefore lacks a basis to file a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 to challenge a state conviction, because there is
no “conviction” to attack.
section 552.040 of the Revised Statutes of Missouri, a
committed person may file a petition pursuant to under 28
U.S.C. § 2254 for either conditional or unconditional
release, but the instant petition does not clearly indicate
an attempt to seek either form of release, or set forth any
information concerning whether petitioner has properly sought
such release in state court. Even so, in an abundance of
caution, the Court will address the avenues for such relief
release is for a limited duration and is qualified by
reasonable conditions. See Mo. Rev. Stat. '
552.040. To obtain conditional release a petitioner must
prove, by clear and convincing evidence, that he “is
not likely to be dangerous to others while on conditional
release.” Mo. Rev. Stat. ' 552.040.12(6). A
conditional release implies that despite a mental disease or
disorder, the committed person is eligible for limited
freedom from a mental health facility, subject to certain
conditions. Greeno v. State, 59 S.W.3d 500, 504 (Mo.
release, by contrast, can be granted only if the petitioner
shows “by clear and convincing evidence that he does
not have, and in the reasonable future is not likely to have,
a mental disease or defect rendering him dangerous to the
safety of himself or others.” Mo. Rev. Stat. '
552.040.7(6). Thus, Missouri places the burden on the
insanity acquittee to prove that he qualifies for conditional
or unconditional release by clear and convincing evidence.
Grass, 643 F.3d 579; Mo. Rev. Stat. 552.040.7(6)
& 552.040.12(6); State v. Rottinghaus, 310
S.W.3d 319, 324 (Mo.Ct.App. 2010).
and convincing evidence is “evidence that instantly
tilts the scales in the affirmative when weighed against the
evidence in opposition so that the court is left with the
abiding conviction that the evidence is true.”
Greeno, 59 S.W.3d at 505 (internal citations
omitted). When an individual is acquitted by reason of mental
disease or defect for a dangerous felony, in order to grant
conditional or unconditional release, the court also must
find that the individual “is not now and is not likely
in the reasonable future to commit another violent
crime” and “is aware of the nature of the violent
crime committed ... and presently possesses the capacity to
appreciate the criminality of the violent crime ... and ...
to conform [his or her] conduct to the requirements of law in
the future.” Mo. Rev. Stat. ' 552.040.20. The
denial of a petition for either conditional or unconditional
release is “without prejudice to the filing of another
application after the expiration of one year from the denial
of the last application.” Mo. Rev. Stat. '
28 U.S.C. § 2254(b) prohibits a grant of habeas relief
on behalf of a person in state custody unless that person has
exhausted the remedies available in the courts of the State.
“The exhaustion requirement of ' 2254(b) ensures
that the state courts have the opportunity fully to consider
federal-law challenges to a state custodial judgment before
the lower federal courts may entertain a collateral attack
upon that judgment.” Duncan v. Walker, 533
U.S. 167, 178B79 (2001). The exhaustion requirement prevents
a federal court from granting a habeas petition based on a
constitutional violation that could be redressed adequately