United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the petition of Allen Moore for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The petition will be denied.
pled guilty to sex crimes in 2005. In 1999, the Missouri
Court of Appeals Eastern District affirmed Allen Moore's
conviction following a jury trial for eight sodomies and five
counts of endangering the welfare of child. State v.
Moore, 983 S.W.3d 219 (Mo. App. E.D. 1999). Petitioner
serves a series of consecutive sentences for his offenses
that he will not complete until 2095. To be eligible for
conditional release, he must first complete the Missouri
Sexual Offender Program ("MOSOP"). Petitioner
asserts that he has "a legitimate expectation under the
law to be provided the Sex Offender Treatment Program."
Parole Board held a hearing to consider releasing petitioner
on February 3, 2016. The Board determined not to release
petitioner at that time and scheduled petitioner for a
reconsideration hearing in February 2020. The Board found
that "There does not appear to be a reasonable
probability at this time that you would live and remain at
liberty without again violating the law based on: A.
Circumstances surrounding the present offense."
August 30, 2016, Moore, the offender, filed a declaratory
judgment action in the Circuit Court of Cole County
challenging the denial of parole. Moore v. Lombardi,
No. 16AC-CC0359 (19th Circuit, Cole County Court).
The petition raised eight claims. In his first claim, the
offender alleged that he was denied parole because he had not
completed the Missouri Sex Offender Treatment Program, which
was not yet available to him due to his long sentence and
high custody level. In his second claim, the petitioner
argued that it was improper to deny him parole based on the
seriousness of his offenses in which no victim had lost any
limbs or suffered bodily injury, when a murderer and other
sex offenders had been paroled after serving less time than
he has. Third, the offender alleged that it was improper for
the Institutional Parole Officer who prepared his pre-hearing
report to sit on the panel that denied him parole. Fourth, he
argued that the Department of Corrections should already have
let him participate in the Missouri Sex Offender Treatment
Program. Fifth, the offender alleged his parole file contains
false and incorrect information, but the Board will not allow
him to correct it. Sixth, petitioner alleged the Board has
turned a blind eye to the fact that before his thirteen
convictions he was not charged with, nor convicted of,
criminal offenses. In his seventh claim, petitioner alleged
that it was improper not to have placed him in the Missouri
Sex Offender Treatment Program already, because he has
completed other programs successfully, and he must complete
sex offender treatment before he is paroled. In his eighth
claim, petitioner alleged that sex offenders are treated
poorly in prison by staff, and by drug offenders, and violent
Circuit Court of Cole County dismissed the petition on
December 12, 2016, in a document that was dated and signed by
the judge, and denominated as a judgment, finding that none
of the allegations petitioner made stated a claim on which
relief can be granted. No post- judgment motions were filed.
The judgment became final thirty days later on January 11,
2017. Petitioner filed a notice of appeal on January 27,
appeal, petitioner challenged the parole denial and the
procedures used by the Parole Board, including the holding of
a parole hearing before the offender had been admitted to sex
offender treatment. Specifically, petitioner stated three
claims on appeal: 1) Section 589.040 RSMo, makes parole
eligibility contingent on completion of the Missouri Sexual
Offender Program, and Moore's constitutional liberty
interests have been violated by the State's failure to
submit Moore to the program; 2) Moore has a legitimate
expectation to be placed in the Missouri Sexual Offender
Program at a reasonable time so that he has a fair chance at
parole, and the State's failure to do so has violated his
rights to due process; and 3) the Missouri Department of
Corrections and Parole Board have proceeded without
jurisdiction and in excess of power by denying Moore parole
without first placing him in the Missouri Sexual Offender
no liberty interest in either parole or an early release from
prison prior to the expiration of his sentence, the Court
found that Moore was not denied a constitutional liberty
interest. Moreover, the Court found that Moore was not denied
parole due to his failure to complete MOSOP. Therefore,
petitioner's appeal was denied on March 6, 2018 when the
Court of Appeals affirmed the lower Court's ruling.
Moore v. Lombardi, No. WD80747 (Mo.Ct.App. 2017).
filed the instant application for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254 by placing his
petition in the prison mailing system on November 28, 2018.
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." Claims that do not
state 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).
is no indication in the record that the Board of Probation
and Parole erred in denying plaintiffs request for parole.
Moreover, "[t]he [Missouri Board of Probation and
Parole] always has retained plenary discretion as to whether
to issue a conditional release date. The board's
consideration of granting conditional release to any of the
inmates [is] a mere possibility, nothing more. It is
insufficient to support a claim for the creation of a
disability." Rentschler v. Nixon, 311 S.W.3d
783, 788-89 (Mo. banc 2010) (emphasis in original).
Therefore, plaintiffs claims regarding the denial of time
credit release or conditional release fail to rise to the
level of a constitutional violation.
plaintiffs claim regarding his currently inability to
participate in MOSOP also fails to state a constitutional
violation. MOSOP is a rehabilitative program designed for
education and therapy for prisoners serving sexual assault
sentences. See State ex rel. Nixon v. Pennoyer, 39
S.W.3d 521, 523 (Mo.Ct.App.2001); Mo.Rev.Stat.§ 589.040.
Participation in this program is discretionary and entirely
up to the Missouri Department of Corrections. Mo.Rev.Stat.
§ 589.040. Although successful participation in the
program can result in the assignment of good time credits and
ultimately conditional release, such an award is
discretionary. See Spencer v. Hurley, No. 4:11CV1306
AGF, 2014 WL 2558694, at *8 (June 6, 2014); Watson v.
Clover,102 Fed.Appx. 519 (8th Cir. 2004);
Walter v. Prudden, No. 4:10CV2191 ...