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Volner v. Payne

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

May 15, 2019

STEVEN L. VOLNER, Petitioner,
v.
STANLEY PAYNE, Respondent,

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on petitioner Steven L. Volner's “Motion for Probation Time Credit, ” which has been construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1) For the reasons discussed below, the petition must be summarily dismissed, as it does not state a denial of a constitutional right and because petitioner has not exhausted his state remedies.

         Background

         Petitioner was charged in Missouri state court with delivery or concealment of a controlled substance at a correctional facility. State of Missouri v. Volner, No. 14SF-CR01554-01 (24th Cir., St. Francois County).[1] He pled guilty on February 13, 2015. That same day, he was given a suspended five-year prison sentence, and placed on a five-year term of probation.

         On October 7, 2016, petitioner's probation was revoked. The circuit court ordered that the previously imposed five-year sentence be executed. However, the circuit court also stated its intention to reconsider petitioner for probation after 120 days of shock incarceration. On January 17, 2017, petitioner was placed back on probation for five years.

         On April 6, 2018, petitioner's probation was once again revoked. That same day, the circuit court ordered the previously imposed five-year sentence to be executed.

         On October 31, 2018, petitioner filed a motion for probation time credit with the circuit court. The motion is similar to the action presently before the Court. The state circuit court has not yet ruled upon petitioner's motion.

         The Petition

         Petitioner filed the instant “Motion for Probation Time Credit” on January 11, 2019. (Docket No. 1) As noted above, the document is similar to the motion petitioner filed in the state circuit court. The Court has construed this motion as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.[2]

         Petitioner asserts that, from February 15, 2013 to April 6, 2018, he served 986 days on probation without being arrested for any city, state, or federal laws. (Docket No. 1 at 2) He further states that 552 of those days were “uneventful” and free of any violations. (Docket No. 1 at 1) Petitioner does acknowledge, however, receiving “two technicals” while on probation. (Docket No. 1 at 2)

         Petitioner states that, under Missouri law, parole time is automatically credited towards an individual's sentence, while probation time may be credited at the discretion of the sentencing court. He argues that probation time “is not so different in substance from parole time, ” and that “the difference is in the governing statutes alone.” Petitioner therefore seeks credit against his sentence for the 986 days he served on probation.

         Discussion

         Petitioner has filed a document construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to have the time he served on probation credited against his sentence of incarceration. For the reasons discussed below, the petition must be summarily dismissed.

         A. Failure to State a ...


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