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 its own motion. On July 29,
2019, the Court directed petitioner Paris D. McPeters 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 state remedies. Petitioner was given thirty days in
which to file a written response. No. response has been
filed. Therefore, for the reasons discussed below,
petitioner's petition will be denied and dismissed.
February 19, 2019, petitioner 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 was handwritten
on a District of Arizona court form. In the petition,
petitioner indicated that he was incarcerated in the Fulton
Reception and Diagnostic Center in Fulton, Missouri. 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 in custody in Missouri.
petition, petitioner challenged his May 2, 2006 conviction
for 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). Petitioner 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. He 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
point, petitioner was paroled, because he stated 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 Corrections.
Subsequently, petitioner advised the Court of a change of
address, indicating that he was no longer incarcerated.
(Docket No. 9). According to a Missouri Department of
Corrections offender search, petitioner is being monitored by
the District 8C Office of Probation and Parole.
petition filed by petitioner contained four grounds for
relief. First, in ground one, petitioner alleged that he had
already served the complete ten-year sentence in his case.
Specifically, he stated that he had not been credited with
692 days of time served. (Docket No. 1 at 6, 8). In ground
two, petitioner claimed 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 concluded 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 stated that his good time credit while on parole
from July 31, 2013 to April 6, 2016 was miscalculated. As a
result, petitioner asserted that his sentence should have
been completed prior to August 16, 2018, when he was retaken
into custody. (Docket No. 1 at 10). Finally, in ground four,
petitioner stated that Missouri Eastern Correctional Center
(MECC), where he was incarcerated, was “unfit for
confinement.” (Docket No. 1 at 11).
29, 2019, the Court ordered petitioner to show cause in
writing why his petition should not be dismissed for failure
to exhaust state remedies. (Docket No. 8). In doing so, the
Court noted that a review of petitioner's state case
showed that he had not filed a motion in the circuit court to
address the allegations in his petition. Petitioner was given
thirty days in which to file a response.
August 12, 2019, petitioner filed a notice of change of
address with the Court. (Docket No. 9). On August 22, 2019,
the memorandum and order that had been mailed to petitioner
was returned as undeliverable. (Docket No. 10). The
Court's order was resent to the new address provided by
petitioner in his notice of change of address. More than
thirty days have elapsed since that time, and petitioner has
not submitted a response to the Court's order to show
has filed a pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In the petition, he
alleges that his good-time credit has been miscalculated, and
that the charges against him should have been dismissed due
to law enforcement misconduct. The Court previously ordered
petitioner to show cause why his petition should not be
dismissed for failure to exhaust state remedies. Petitioner
did not file a response. For the reasons discussed below, his
petition must be denied and dismissed.
Exhaustion of State Remedies
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 ...