# Miller v. McBee

> District Court, E.D. Missouri · June 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10235226

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** June 24, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10235226

## How later opinions describe it (automated extraction)

- stating that courts “may take judicial notice of judicial opinions and public records”
- explaining that district court may take judicial notice of public state records

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SHANNON LOUISE MILLER, )
)
Petitioner, )
)
v. ) No. 4:21-CV-493-NAB
)
CHRIS MCBEE, )
)
Respondent. )

MEMORANDUM AND ORDER
This matter is before the Court upon review of petitioner’s response to the Court’s order to
show cause as to why this habeas corpus action should not be dismissed as time-barred or for
failure to exhaust available state remedies. ECF No. 9. Having carefully reviewed petitioner’s
response, the Court finds that it fails to address either the timeliness or the exhaustion issues. For
the reasons discussed below, and in consideration of petitioner’s self-represented status, the Court
will provide petitioner an additional twenty-one (21) days to file an appropriate response to this
Court’s May 21, 2021 Memorandum and Order.
Background
On November 24, 2009, petitioner was charged with a class B felony of distribution of a
controlled substance in two cases. See State v. Miller, Case No. 10L6-CR00050-01 and State v.
Miller, Case No. 10L6-CR00051-01 (45th Jud. Dist., Cir. Ct. of Lincoln Cty.). On November 5,
2010, petitioner pled guilty in both cases. On January 24, 2011, petitioner was sentenced to twelve
(12) years’ imprisonment in the Missouri Department of Corrections with allowance for long term
drug treatment.

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On June 21, 2011, petitioner filed a motion to vacate, set aside, or correct the judgment or
sentence pursuant to Missouri Supreme Court Rule 24.035. In her motion, petitioner requested to
be put on probation because she was unsuccessful in long term drug treatment. On May 23, 2012,
the motion court held a hearing, vacated the sentences, and resentenced petitioner in each case, but

suspended the execution of sentences and placed her on probation. On January 27, 2014,
petitioner’s probation was revoked, and the sentences were ordered to be executed after she was
arrested for a separate drug offense.
On March 24, 2014, petitioner filed a timely motion to vacate, set aside, or correct sentence
pursuant to Missouri Supreme Court Rule 24.035. See Miller v. State, Case No. 14L6-CC00036
(45th Jud. Dist., Cir. Ct. of Lincoln Cty.). Petitioner was appointed counsel and an amended motion
was filed on August 18, 2014. Subsequent to an evidentiary hearing, the circuit court denied relief
on March 17, 2015. Petitioner filed an appeal on April 20, 2015. The appeal was denied, and the
Missouri Court of Appeals of the Eastern District issued its mandate on September 17, 2015. See
Miller v. State, No. ED102883 (Mo. Ct. App. E.D.).

At some point in 2019, petitioner was granted parole release, which was subsequently
revoked, and she was remanded back into custody. On October 16, 2020, petitioner filed a second
motion to vacate, set aside, or correct sentence pursuant to Missouri Supreme Court Rule 24.035,
in which she raised issues related to her plea, sentencing, and parole revocation. See Miller v. State,
Case No. 20L6-CC00129 (45th Jud. Dist., Cir. Ct. of Lincoln Cty.). On February 11, 2021,
petitioner’s motion was denied as untimely and successive as to the plea and sentencing issues. Id.
As to her parole revocation challenge, the circuit court determined it was not cognizable in a
postconviction relief action. Id.

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Discussion
On April 19, 2021, petitioner filed the instant action for habeas corpus relief pursuant to
28 U.S.C. § 2254 challenging the revocation of her parole. ECF No. 1. On May 21, 2021, the Court
reviewed the petition and found that it appeared to be subject to dismissal for untimeliness and

failure to exhaust state court remedies. ECF No. 8.
First, as to the timeliness issue, the Court noted that the one-year limitations period for
challenging a parole revocation decision begins when the revocation order is issued. Id. at 3-8
(citing Davis v. Purkett, 296 F. Supp. 2d 1027, 1029-30 (E.D. Mo. 2003)). Petitioner claimed her
parole was revoked on December 4, 2019.1 ECF No. 1 at 6. Because petitioner filed this action on
April 19, 2021, more than one year after the alleged revocation, the Court found that the petition
appeared to be time-barred.
Second, a Missouri prisoner must exhaust state court remedies prior to filing a § 2254
petition by challenging the parole decision through one of three avenues provided by Missouri
law: by bringing a declaratory action against the Board of Parole and Probation, by filing a state

petition for habeas corpus, or by filing a petition for writ of mandamus. Id. at 5 (citing Wayne v.
Missouri Bd. of Prob. and Parole, 83 F.3d 994, 996-97 (8th Cir. 1996)). The Court acknowledged
petitioner’s assertion that she “filed [an] appeal with the Probation and Parole Board,” however,
she did not explicitly state that she brought this matter to the Missouri Courts through a declaratory

1 This Court reviewed petitioner’s state court case on Case.net, Missouri's online case management system, but could
not definitively confirm the date of the parole revocation decision. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007)
(explaining that district court may take judicial notice of public state records); and Stutzka v. McCarville, 420 F.3d
757, 760 n. 2 (8th Cir. 2005) (stating that courts “may take judicial notice of judicial opinions and public records”).

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action against the Parole Board, a writ of mandamus against the Board, or a state petition for habeas
corpus.
Consequently, petitioner was directed to show cause in writing as to why her § 2254
petition should not be dismissed for untimeliness and for failure to exhaust available state

remedies. The Court further directed her to include evidence with her response showing that she
made one of the three appropriate filings in state court prior to filing her petition. Petitioner had
thirty (30) days to respond, or until June 21, 2021.
On June 3, 2021, petitioner filed a twenty-page handwritten document. ECF No. 9. Plaintiff
filed no other response, and the time for doing so has passed. The June 3, 2021 filing is
disorganized, lengthy, and repetitive, making it difficult for the Court to decipher the specific
assertions. However, petitioner appears to allege that various individuals violated her Eighth
Amendment and Due Process rights while she was incarcerated. Among other allegations, plaintiff
states a Functional Unit Manager failed to keep her safe, three parole officers allowed fellow
inmates to abuse her, the Board of Probation and Parole did not give her credit for certain time

served, and the Mental Health Department neglected her medical needs. Included with the filing
are copies of an Informal Resolution Request and Grievance Appeal she filed with the Missouri
Department of Corrections regarding her ineligibility for a treatment program and issues with a
damaged shower stool.
Petitioner’s filing is not in compliance with the Court’s May 21, 2021 instructions, which
directed petitioner to show cause as to why this habeas corpus action should not be dismissed as
time-barred or for failure to exhaust available state remedies. To the contrary, the filing appears to
be an attempt to initiate a civil action under 42 U.S.C. § 1983. Both the federal habeas corpus

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statute, 28 U.S.C. § 2254, and the civil rights statute, 42 U.S.C. § 1983, provide access to a federal
forum for claims of unconstitutional treatment at the hands of state officials. Generally, a
prisoner’s challenge to the validity of her confinement or to matters affecting its duration falls
within the province of habeas corpus and, therefore, must be brought pursuant to § 2254. Preiser

v. Rodriguez, 411 U.S. 475, 500 (1973). On the other hand, challenges involving the circumstances
of confinement, or how one ended up in confinement, may be presented in a § 1983 action.
Here, petitioner initiated the instant action by filing a form ‘Petition under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody.’ ECF No. 1. Plaintiff asserted four
grounds for relief challenging her parole revocation. Id. Plaintiff’s supplemental filing, however,
appears to be an attempt to file an action seeking relief under 42 U.S.C. § 1983. The Court will not
allow plaintiff to proceed under both statutes simultaneously in one action. If petitioner wishes to
bring a civil rights action pursuant to § 1983, she must file a separate action, seeking separate relief
under that statute. Because petitioner’s June 3, 2021 filing appears to be an inappropriate attempt
to proceed with a “hybrid” action of some sort, where plaintiff is seeking relief under 42 U.S.C. §

1983 and 28 U.S.C. § 2254, it will be stricken from the record of this habeas corpus action.
However, in consideration of petitioner’s self-represented status, the Court will provide her
with the opportunity to appropriately respond to this Court’s May 21, 2021 Order. Plaintiff will
have an additional twenty-one days to show cause in writing as to why the instant § 2254 petition
should not be dismissed as time-barred or for petitioner’s failure to exhaust her administrative
remedies. In her response, petitioner must provide the Court with some evidence that she has made
one of the three appropriate filings in state court prior to initiating the instant habeas corpus action.

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Accordingly,
IT IS HEREBY ORDERED that petitioner shall show cause, in writing and no later than
twenty-one (21) days from the date of this Order, July 15, 2021, why this action should not be
dismissed as time-barred and for failure to exhaust available state remedies.
IT IS FURTHER ORDERED that petitioner’s supplemental petition [ECF No. 9] is
STRICKEN from the record.
IT IS FURTHER ORDERED that the Clerk is directed to mail to plaintiff a copy of this
Court’s May 21, 2021 Memorandum and Order. [ECF No. 8]
IT IS FURTHER ORDERED that if petitioner fails to comply with this Order, the Court
will dismiss this action without prejudice and without further notice.

TeGbt (SMa
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
Dated this 24th day of June, 2021.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10235226. Public record. Not legal advice.