United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of petitioner Isaiah
Marin to proceed in forma pauperis. Petitioner,
currently incarcerated at the Missouri Eastern Correctional
Center (“MECC”), seeks habeas corpus relief
pursuant to 28 U.S.C. § 2254. Specifically, petitioner
requests relief from an extension of his release date by the
MECC Parole Board due to poor conduct. Based on the financial
affidavit submitted in support of his motion, petitioner will
be granted leave to proceed without the payment of the filing
fee. However, for the reasons discussed below, the petition
will be summarily dismissed without prejudice.
review of petitioner's case history on Missouri Case.net,
the State of Missouri's online docketing system, shows
that petitioner pled guilty to a charge of “Attempt to
Entice a Child” in 2005, for which he was sentenced to
five (5) years suspended imposition of sentence. State v.
Marin, No. 0511-CR04101-01 (11th Jud. Cir. July 5,
2005). On September 4, 2007, petitioner's probation was
revoked and he was sentenced to three (3) years on this
charge. On February 8, 2008, petitioner pled guilty to
burglary and assault in a separate criminal case, and was
sentenced to six (6) years and six (6) months, to run
concurrently with each other and his previous sentence.
State v. Marin, No. 0711-CR02411-01 (11th Jud. Cir.
Apr. 9, 2007). Petitioner's incarceration was extended in
2009 after he pled guilty to the charge of “Delivery or
Concealment of Prohibited Articles in the Department of
Corrections” and he was sentenced to eight (8) years to
run consecutively with the time he was then serving.
State v. Marin, No. 08SF-CR00139 (24th Jud. Cir.
Dec. 17, 2008).
petitioner states in his petition that he is “not
challenging the Circuit Court where he plead guilty and was
sentenced” but instead he is “addressing matters
with the Missouri Department of Corrections … Division
of Probation and Parole in regard [to] due process
violations.” ECF No. 1-1 at 2. According to petitioner,
he received conduct violations at MECC which “extended
and rescheduled” his conditional release date of
confinement from “08/06/19 to 08/06/20.”
Id. Petitioner attached to his petition the notice
he received from the Board of Probation and Parole confirming
that his previously set release date was cancelled and his
new release date was scheduled for “08/06/2020.”
Id. at 8. The Board states their reasoning as:
“There does not appear to be a reasonable probability
at this time that the offender would live and remain at
liberty without again violating the law based on …
[p]oor institutional adjustment.” Id. The
notice also states that the decision is not subject to
alleges his Fourteenth Amendment right to due process was
violated when he did not receive a parole hearing “with
a neutral and detached hearing body” and when his
release date was extended “without receiving a written
notice of claims violations of parole.” ECF No. 1-1 at
1-4. According to petitioner, he was denied the right
“to present witnesses, documentary evidence, and to
confront and cross-examine adverse witnesses.”
Id. at 4. He also complains of never receiving
“a written statement by factfinders as to the evidence
relied on and reason for revoking [his] conditional release
date.” Id. at 5.
states that he requested a grievance form from the MECC
parole office to complain of due process violations in
regards to the extension of his release date, but he was
informed that the “decision cannot be appealed as it
was made by majority board decision” and that
“[p]arole decisions are not grievable.” ECF No.
1-1 at 10. According to petitioner, the filing of this case
is “the first process to address” his alleged due
process violations. ECF No. 1-1 at 5, 6. Petitioner asks this
Court to reprimand the Missouri Department of Corrections
(“MDOC”) for unconstitutional actions and to
reverse the MDOC Board of Probation and Parole's decision
to extend his release date. Id. at 7.
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.” As such, for a claim
to be cognizable in federal habeas review, it must raise a
constitutional issue. Gee v. Grodse, 110 F.3d 1346,
1351-52 (8th Cir. 1997). Rule 4 of the Rules Governing §
2254 Cases in the United States District Courts provides that
a district court shall summarily dismiss a § 2254
petition if it plainly appears that the petitioner is not
entitled to relief. Such is the case here.
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 Nebraska Penal
and Correctional Complex, 442 U.S. 1, 7 (1979).
“[A]n inmate does not have a constitutionally-protected
liberty interest in the possibility of parole, and [the
United States Court of Appeals for the Eighth Circuit] has
held that the Missouri parole statutes ‘create no
liberty interest' under state law in the parole
board's discretionary decisions.” Adams v.
Agniel, 405 F.3d 643, 645 (8th Cir. 2005) (quoting
Marshall v. Mitchell, 57 F.3d 671, 673 (8th Cir.
1995)). Although a state's parole statutes and
regulations may create a liberty interest that is entitled to
protection, Greenholtz, 442 U.S. at 12, the Eighth
Circuit has determined that Missouri statutes do not create a
liberty interest protected by the due process clause of the
Fourteenth Amendment. Marshall, 57 F.3d at 673.
Furthermore, the Missouri parole policy guidelines are not
mandatory and as such, they do not create a
constitutionally-protected liberty interest either.
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,
offender characteristics, and sentence length; mitigating or
aggravating circumstances may warrant decisions outside the
guidelines). Petitioner has failed to show that he was denied
a constitutional right by the extension of his release date
addition, 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
Kentucky, 410 U.S. 484, 489-93 (1973). Missouri law
provides at least three distinct avenues for challenging a
parole 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. Missouri
Board of Probation and Parole, 83 F.3d 994, 996-97 (8th
Cir. 1996). According to the filings, petitioner has pursued
none of these state court remedies and for some reason he
believes this federal suit is the “first process to
address” his alleged due process violations. ECF No.
1-1 at 6. Petitioner has not exhausted his available state
remedies. The Court will dismiss the petition without
prejudice. Adams v. Agniel, 405 F.3d 643, 644 (8th
Cir. 2005) (a claim attacking the validity of confinement can
only be properly pursued through a habeas action after
exhausting state remedies).
petitioner has failed to make a substantial showing of the
denial of a constitutional right, which requires a
demonstration “that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right.” Khaimov v.
Crist, 297 F.3d 783, 785 (8th. Cir. 2002) (quotation
omitted). Thus, the Court will not issue a certificate of
appealability. 28 U.S.C. § 2253(c).
IT IS HEREBY ORDERED that plaintiffs motion
for leave to proceed in forma pauper is [ECF No. 3]
IS FURTHER ORDERED that the petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 ...