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CAMPBELL v. U.S., 4:13-CV-1445-TCM. (2013)

Court: District Court, E.D. Missouri Number: infdco20130828b57 Visitors: 13
Filed: Aug. 27, 2013
Latest Update: Aug. 27, 2013
Summary: MEMORANDUM AND ORDER JEAN C. HAMILTON, District Judge. This matter is before the Court upon the application of Maurice Campbell for leave to commence this action without payment of the required filing fee. See 28 U.S.C. 1915(a). Upon consideration of the financial information provided with the application, the Court finds that petitioner is financially unable to pay any portion of the filing fee. Therefore, the Court grants petitioner leave to proceed in forma pauperis. Petitioner, an in
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MEMORANDUM AND ORDER

JEAN C. HAMILTON, District Judge.

This matter is before the Court upon the application of Maurice Campbell for leave to commence this action without payment of the required filing fee. See 28 U.S.C. § 1915(a). Upon consideration of the financial information provided with the application, the Court finds that petitioner is financially unable to pay any portion of the filing fee. Therefore, the Court grants petitioner leave to proceed in forma pauperis.

Petitioner, an inmate at the Southeastern Correctional Center, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254, following the denial of parole on January 12, 2012. Petitioner asserts, "On 12/21/11 petitioner [was] given a parole hearing and [was] denied release on 1/12/12 with a scheduled reconsideration hearing for 12/06/13."

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 (1973). State remedies are ordinarily not considered exhausted if an individual may effectively present his claim to the state courts by any currently available and adequate procedure.

Not only does petitioner state that he has reconsideration hearing scheduled for December 2013, but 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 Bd. of Prob. and Parole, 83 F.3d 994, 996-97 (8th Cir. 1996). As such, it appears that petitioner has available procedures that he must exhaust.

Therefore,

IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED.

IT IS FURTHER ORDERED that no order to show cause shall issue at this time as to respondents, because it appears that petitioner did not exhaust available state remedies before invoking federal habeas corpus jurisdiction.

IT IS FURTHER ORDERED that petitioner shall show cause within thirty (30) days of the date of this Order as to why the Court should not dismiss the instant application for failure to exhaust available state remedies. Petitioner's failure to file a show cause response shall result in the denial of the instant habeas corpus petition and the dismissal of this action, without prejudice.

Source:  Leagle

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