United States District Court, E.D. Missouri, Eastern Division
PARIS D. MCPETERS, Petitioner,
ANNE L. PRECYTHE, et al., Respondents,
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of petitioner Paris
D. McPeters for leave to commence this civil action without
prepayment of the required filing fee. Having reviewed the
financial information submitted in support, the Court finds
that the motion should be granted. See 28 U.S.C.
§ 1915(b)(1). Additionally, for the reasons discussed
below, the Court will order petitioner to show cause why his
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 should not be dismissed for failure to exhaust
is a pro se litigant who is currently incarcerated in the
Missouri Eastern Correctional Center (MECC) in Pacific,
Missouri. On February 19, 2019, he filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 in the
United States District Court for the District of Arizona.
McPeters v. Precythe, et al., No.
CV-19-01185-DJH-ESW (D. Ariz.). The petition is on a District
of Arizona court form. Petitioner also filed a motion for
leave to proceed in forma pauperis. On May 7, 2019, the
Arizona District Court transferred the matter to the United
States District Court for the Eastern District of Missouri
pursuant to 28 U.S.C. § 1406(a), because petitioner was
convicted and is in custody in Missouri.
2, 2006, petitioner pled guilty to two counts of first-degree
drug trafficking and one count of possession with intent to
distribute, deliver, manufacture, or produce a controlled
substance. State of Missouri v. McPeters, No.
0511-CR07054-01 (11th Cir., St. Charles County).
He was given a ten-year sentence on each drug trafficking
count, to run concurrently. However, the execution of those
sentences was suspended, and petitioner was placed on
probation for a period of five years. Petitioner was also
sentenced to five years imprisonment on the possession count.
Upon release from that sentence, he was directed to report to
the probation office. According to petitioner, he was paroled
on July 11, 2007. (Docket No. 1 at 8).
motion to revoke petitioner's probation was filed on
January 30, 2008. It does not appear, though, that his
probation was actually revoked until September 9, 2009. On
that date, petitioner's ten-year suspended sentence was
not entirely clear when petitioner was paroled. At some
point, however, he was released from prison, because he
states that on August 16, 2018, Amy Cape of Missouri
Probation and Parole had him arrested. (Docket No. 1 at 6).
He was thereafter returned to the Missouri Department of
ground one of his petition, petitioner alleges that he has
already served the complete ten year sentence in his case.
Specifically, he states that he has not been credited with
692 days of time served. (Docket No. 1 at 6, 8). In ground
two, petitioner claims that one of the counts of first-degree
drug trafficking of which he was originally charged was
dropped because the detective on his case was
“terminated from his duties due to misconduct.”
(Docket No. 1 at 9). He concludes that since this detective
was involved in the entirety of his case, the other counts
should have been dismissed as well. In ground three,
petitioner states that his good time credit while on parole
from July 31, 2013 to April 6, 2016 was miscalculated. As a
result, petitioner asserts that his sentence should have been
completed prior to August 16, 2018, when he was retaken into
custody. (Docket No. 1 at 13). Finally, in ground four,
petitioner states that MECC is “unfit for
confinement.” Discussion Petitioner
has filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. He alleges four separate grounds, though
his chief complaint seems to be that he has not been given
the proper credit against his sentence for time served in
custody. As discussed below, however, there is no indication
that petitioner has sought or exhausted his state remedies.
Therefore, he will be directed to show cause why his petition
should not be dismissed.
petitioner in state custody seeking relief pursuant to 28
U.S.C. § 2254 must first exhaust available state
remedies before pursuing federal habeas relief. Wayne v.
Missouri Bd. of Probation & Parole, 83 F.3d 994, 996
(8th Cir. 1996). See also White v.
Wyrick, 651 F.2d 597, 598 (8th Cir. 1981)
(stating that “[i]t is elementary that a § 2254
petitioner must exhaust available state remedies before he is
entitled to relief in federal court”). This provides
the state an “opportunity to pass upon and correct
alleged violations of its prisoners' federal
rights.” Baldwin v. Reese, 541 U.S. 27, 29
(2004). To exhaust state remedies, a petitioner must fairly
present his claim in each appropriate state court. Nash
v. Russell, 807 F.3d 892, 898 (8th Cir.
2015). This requires him to submit not only the facts, but
also the substance of his federal habeas claim to the state
court. Abdullah v. Groose, 75 F.3d 408, 411
(8th Cir. 1996). Specifically, in order “to
satisfy the ‘fairly presented' requirement, a
petitioner is required to refer to a specific federal
constitutional right, a particular constitutional provision,
a federal constitutional case, or a state case raising a
pertinent federal constitutional issue.” Barrett v.
Acevedo, 169 F.3d 1155, 1161-62 (8th Cir.
of petitioner's state case shows that he has not filed a
motion in the circuit court to address the allegations in his
petition. Indeed, petitioner himself explains that he has
only written letters to administrative staff within MECC and
to the probation and parole office. (Docket No. 1 at 6).
Thus, there is no indication that petitioner has exhausted
his state remedies. As noted above, the state must be given
an opportunity to review and correct alleged violations
before petitioner can seek federal habeas relief.
Order to Show Cause
will be given thirty days in which to show cause, in writing,
why his petition should not be dismissed for failure to
exhaust state remedies. If petitioner does not comply with
this order, his case ...