dismissing as moot a 28 U.S.C. § 1983 case premised on the denial of parole when the plaintiff was released on parole
How later courts described this case
- dismissing as moot a 28 U.S.C. § 1983 case premised on the denial of parole when the plaintiff was released on parole
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THOMAS E. BURNSIDE, )
Petitioner,
VS. Case No. 4:16-cv-00947-JAR
JAMES HURLEY,
Respondent.
)
MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Thomas E. Burnside’s Petition for Writ of
Habeas Corpus filed under 28 U.S.C. § 2254. (Doc. 1-1.) The government responded (Doc. 9),
and Petitioner filed a reply (Doc. 12). For the following reasons, Petitioner’s petition is
DISMISSED as moot.
Introduction and Background
In 1975, Petitioner was convicted of rape and kidnapping and sentenced to consecutive
terms of fifty and ten years in prison, respectively. (Doc. 1-1 at 2.) Two years later, he was
convicted of assault with intent to kill and second-degree assault, adding an additional four years
to his sentence. (/d.) Petitioner was incarcerated at the Northeast Correction Center in Bowling
Green, Missouri.’ (Doc. 9 at 1.)
In 2003, Petitioner was notified that his minimum mandatory release date was June 8,
2008. (Doc. 1-3 at 7.) However, Petitioner was denied parole in February 2008. (Doc. 9-2 at 1.)
' He completed his sentence for rape on May 10, 2011, but he remained in custody and serving
the remainder of his consecutive terms for kidnapping and assault. (See Doc. 1-3 at 8.)
The Missouri Board of Probation and Parole stated that releasing Petitioner would “depreciate
the seriousness” of his offense and that Petitioner refused to complete a “Board stipulated
institutional program.” (/d.) On March 13, 2012, Petitioner was again denied parole on the
ground that release would undermine the seriousness of his offense. In addition, the Board listed
the Missouri Sexual Offender Program (“MOSOP”) as a special condition of release. (Doc. 1-3
at 6.) At the same time, the Board extended Petitioner’s minimum mandatory release date to
November 8, 2016. (/d.)
In November 2015, Petitioner filed a Motion for habeas corpus under Missouri Rule
29.15, alleging that the MOSOP was instituted in 1988, making its application to him a violation
of the Ex Post Facto Clause of the United States and Missouri Constitutions. (/d. at 4-5.) That
motion was denied by the trial court in March 2016 and the denial was affirmed by the Missouri
Court of Appeals on June 2, 2016. (Doc. 1-3 at 1-3.) Petitioner did not seek transfer to the
Missouri Supreme Court.
On March 10, 2016, while Petitioner’s Rule 29.15 Motion was on appeal, the Parole
Board extended Petitioner’s minimum mandatory release date to November 8, 2018, again citing
the serious circumstances surrounding Petitioner’s offenses and adding, “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.” (/d. at 4.) In support of its likely-to-reoffend conclusion, the
Parole Board noted that Petitioner had not completed MOSOP. (dd. at 5.)
Petitioner filed this petition on June 20, 2016, again arguing that he was denied parole
based on his failure to complete MOSOP and that the denial violates the Ex Post Facto Clause.
(Doc. 1 at 14; Doc. 1-1.) Respondent argues that the Petitioner’s claim is time-barred,
unexhausted, moot, and meritless. (Doc. 9.) Petitioner replies that precedent from the Supreme
Court and this District support his claim. (Doc. 12.)
On September 9, 2019, the Court ordered Respondent to supplement the record regarding
Petitioner’s current state of custody. (Doc. 14.) On September 17, 2019, Respondent
represented to the Court that Petitioner “was released on parole on April 4, 2019 and is currently
under the supervision of the Missouri Board of Probation and Parole.” (Doc. 16.)
In light of Petitioner’s current custodial status, the Court finds that his petition is moot.
Mootness is a jurisdictional bar that “can arise at any stage of litigation,” Calderon v. Moore,
518 U.S. 149, 150 (1996) (citing Steffel v. Thompson, 415 U.S. 452, 459, n. 10 (1974)), and
federal courts “may not ‘give opinions upon moot questions or abstract propositions,’” id.
(quoting Mills v. Green, 159 U.S. 651, 653 (1895)). When a litigant receives the specific relief
he seeks, his case becomes moot. Fiittie v. Erickson, 724 F.2d 80, 81 (8th Cir. 1983) (dismissing
as moot a 28 U.S.C. § 1983 case premised on the denial of parole when the plaintiff was released
on parole).
Petitioner’s only claim is that he was being denied parole for his failure to complete
MOSOP. He has since been granted parole. As such, he has obtained the specific relief he seeks
and therefore his petition is moot.
Accordingly,
IT IS HEREBY ORDERED that Petitioner Thomas E. Burnside’s Petition for Writ of
Habeas Corpus filed under 28 U.S.C. § 2254 (Doc. 1-1), is DISMISSED as moot.
Dated this 20th day of September, 2019.
oe
UNITED STATES DISTRICT JUDGE
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