United States District Court, E.D. Missouri, Northern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner's petition for
writ of habeas corpus under 28 U.S.C. § 2254. After
reviewing the case, the Court has determined that petitioner
is not entitled to relief as the specific grounds outlined in
his petition are not cognizable under habeas corpus.
Moreover, even if petitioner could attain relief under habeas
corpus, his petition would have to be summarily dismissed
because of petitioner's failure to exhaust available and
adequate state remedies before invoking federal habeas corpus
a state prisoner, has filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 and suggestions in
support. In his filings, petitioner asks for immediate
release from prison because he alleges his due process rights
were violated when he was charged with a conduct violation on
January 24, 2018 for possession of an intoxicating substance.
Petitioner was found with a crystallized substance in his
cell that tested positive as methamphetamine. Petitioner
claims he is innocent of the charge, and that the substance
was crushed soap. He states his rights have been violated
because the state did not save the evidence for retesting.
Because petitioner was issued a conduct violation, the board
of probation and parole extended his conditional release date
by a year.
28 U.S.C. § 2254(a), a district court may only entertain
a petition for writ of habeas corpus if the petitioner
“is in custody in violation of the Constitution or laws
or treaties of the United States.” In other words,
grounds that do not state a denial of a constitutional issue
are not cognizable in a federal habeas petition.
E.g., Gee v. Groose, 110 F.3d 1346, 1351-52
(8th Cir. 1997). The instant petition, relating to the board
of probation and parole's extension of petitioner's
presumptive release date because of a conduct violation, does
not state a denial of a constitutional issue cognizable in
is no constitutional or inherent right of a convicted person
to be conditionally released before the expiration of a valid
sentence.” Greenholtz v. Inmates of Neb. Penal and
Corr. Complex, 442 U.S. 1, 12 (1979). A state's
parole statutes and regulations, however, may create a
liberty interest that is entitled to protection. Id.
at 12; Marshall v. Mitchell, 57 F.3d 671, 672 (8th
Cir. 1995). The United States Court of Appeals for the Eighth
Circuit has examined this issue and has determined that the
“Missouri statutes . . . do not create a liberty
interest protected by the due process clause of the
Fourteenth Amendment.” Marshall, 57 F.3d at
672. Additionally, the Missouri parole guidelines are not
mandatory. See 14 Mo. C.S.R. 80-2.020(1)
(“Parole guidelines indicate the customary range of
time to be served before release for various combinations of
offense seriousness and offender characteristics and sentence
length. Mitigating or aggravating circumstances may warrant
decisions outside the guidelines.”). So, the parole
guidelines do not create a constitutionally protected liberty
interest such that petitioner would be entitled to relief on
his habeas petition. See also Rentschler v. Nixon,
311 S.W.3d 783 (Mo. 2010).
extent petitioner argues that officials did not follow
Missouri Department of Corrections Policy No. D5-7.1, which
petitioner alleges requires that evidence be stored until the
conclusion of the grievance appeal process, this also does
not set forth a claim of denial of constitutional due
process. Despite petitioner's assertion, there is no
federal constitutional liberty interest in having state
officers follow state law or prison officials follow prison
regulations. See Phillips v. Norris, 320 F.3d 844,
847 (8th Cir. 2003). Any liberty interest must be an interest
in the nature of the prisoner's confinement, not an
interest in the procedures by which the state believes it can
best determine how he should be confined. Id.
petitioner's argument was cognizable under § 2254,
his petition would still be subject to dismissal. In the
absence of exceptional circumstances, a state prisoner must
exhaust currently available and adequate state remedies
before invoking federal habeas corpus jurisdiction.
Braden v. 30th Judicial Circuit Court of Ky., 410
U.S. 484 (1973). Missouri law provides at least three
distinct avenues for challenging a parole board's
decision: by bringing a declaratory action against the board,
by filing a state petition for habeas corpus, or by filing a
petition for writ of mandamus. Wayne v. Mo. Bd. of Prob.
& Parole, 83 F.3d 994, 996-97 (8th Cir. 1996).
Petitioner did not exhaust these available state remedies
before bringing this action. As a result, the Court will
dismiss the petition without prejudice.
these reasons, petitioner's application for writ of
habeas corpus will be dismissed. Additionally, the Court
finds that petitioner has failed to make a substantial
showing of the denial of a constitutional right. The Court
will not issue a certificate of appealabilty.
IT IS HERBY ORDERED that petitioner's
motion to proceed in forma pauperis is
GRANTED. [ECF No. 2]
IS FURTHER ORDERED that petitioner's petition
for writ of habeas corpus is D ...