Berry

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

IRVING BERRY, )

)

Petitioner, )

)

v. ) No. 4:23-cv-01116-HEA

)

TERI VANDERGRIFF, )

)

Respondent. )

OPINION, MEMORANDUM AND ORDER TO SHOW CAUSE

This matter is before the Court upon review of Petitioner Irving Berry’s

Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State

Custody. Because it appears Petitioner has not exhausted his remedies in state court,

the Court will order Petitioner to show cause why this action should not be dismissed

without prejudice.

Background

In September 1979, a jury in the City of St. Louis convicted Petitioner of first-

degree robbery, rape, and kidnapping. The state court sentenced him to respective

terms of life imprisonment, 30 years imprisonment, and 25 years imprisonment, to

be served consecutively. His convictions were affirmed on direct appeal. State v.

Berry, 609 S.W.2d 948 (Mo. banc 1980). He sought post-conviction relief under

Missouri Rule 27.26, which was denied twice. This denial was upheld on appeal.

Berry v. State, 714 S.W.2d 676 (Mo. Ct. App. 1986).1

In 1988, Petitioner brought a motion for relief under 28 U.S.C. § 2254, which

the Court denied on the merits. See Berry v. Armontrout, No. 4:25-cv-1903-JSD

(E.D. Mo. Dec. 22, 2025) at Doc. 1-1 (report and recommendation from Berry v.

Armontrout, No. 4:88-cv-765 (E.D. Mo. Oct. 31, 1988)). Petitioner also brought

two prior habeas petitions pursuant to 28 U.S.C. § 2241, which were dismissed for

failure to exhaust state remedies. See Berry v. Rowley, No. 4:99-cv-1713-LOD (E.D.

Mo. Apr. 28, 2000) and Berry v. Rowley, No. 4:99-cv-1250-LOD (E.D. Mo. Sept. 8,

1999). In addition, Petitioner has brought four successive habeas petitions in this

Court, which were dismissed because they lacked authorization from the Court of

Appeals. See Berry v. Kemna, No. 4:16-cv-385-NCC (E.D. Mo. Jul. 22, 2016);

Berry v. Kemna, No. 4:01-cv-1086-ERW (E.D. Mo. Aug. 22, 2001); Berry v.

Rowley, No. 4:00-cv-1110-LOD (E.D. Mo. Nov. 30, 2000); Berry v. Purkett, No.

4:97-cv-568-TIA (E.D. Mo. May 22, 1997).

More recently, Petitioner brought a §1983 action challenging the requirement

that he attend Missouri’s Sexual Offender Program (MOSOP). See Berry v. Pfister,

1 This information was found in the Court’s denial of Petitioner’s first § 2254 petition, Berry v.

Armontrout, No. 88-765 (E.D. Mo. Oct. 31, 1988). Petitioner attached this ruling as an exhibit to

his most recent § 2254 petition in Berry v. Armontrout, No. 4:25-cv-1903-JSD (E.D. Mo. filed

Dec. 22, 2025), Doc. 1-1.

4:21-cv-903-AGF (E.D. Mo. Jul. 22, 2021). The Court determined, among other

things, that Petitioner had no constitutional or inherent right to early release from

prison. Because Petitioner had no liberty interest in an early release, his due process

challenge to mandatory MOSOP participation failed to state a constitutional claim.

Id. at Doc. 13.

Next, he filed the instant §2254 petition. Although the Court initially

dismissed the instant action as successive, on appeal the Eighth Circuit Court of

Appeals determined the petition was not successive. See Doc. 13. It is now before

the Court on preliminary review under Rule 4 of the Rules Governing Section 2254

Cases.

The § 2254 Petition

Petitioner is a self-represented litigant who is currently incarcerated at the

Farmington Correctional Center in Farmington, Missouri. Petitioner challenges the

cancellation of his parole release date arising out of his September 13, 1979

convictions for first degree robbery, rape, and kidnapping in the Circuit Court for

the City of St. Louis. Petitioner attaches to his petition documents showing that he

was terminated from MOSOP, Phase I, because he would not admit guilt. See Doc.

1-5.

Petitioner alleges that his termination from MOSOP violates Missouri

Revised Statutes § 536.014 and § 547.035. Doc. 1-7. He also alleges that an

admission of guilt in the MOSOP program would defeat his claims of actual

innocence and would prohibit him from filing a post-conviction motion for DNA

testing. See Doc. 1-8 at 1. And he alleges an admission of guilt violates his Fifth

Amendment right against self-incrimination. Because of his termination from

MOSOP, the Board of Probation and Parole cancelled his early release date. See

Doc. 1-9.

He states that the Board of Probation and Parole had granted him a parole date

of August 6, 2022, apparently contingent on his completion of MOSOP. Doc. 1-9

at 2. On June 2, 2021, he did not admit guilt during a MOSOP meeting, and he was

terminated from the program. “It was at that time, I was informed I would be

TERMINATED from Phase I of MOSOP for not admitting guilt, and that my Parole

Date would be taken/canceled.” Id. He seeks to have both his early release dates,

August 6, 2022 and August 23, 2023, restored by the Board of Probation and Parole.

Id. at 3. Once these release dates are restored, he seeks immediate release from his

incarceration at Farmington Correctional Center.

Petitioner has left blank all sections of the form § 2254 petition that seek

information regarding the exhaustion of his claims. See Doc. 1 at 2-12. He also has

not completed the section of the form seeking information about the timeliness of

the petition. He states no facts from which the Court could determine whether he

challenged the Board of Probation and Parole’s determinations in the Missouri state

courts before initiating the instant action.

Discussion

Rule 4 of the Rules Governing § 2254 Cases in the United States District

Courts provides that a district court shall summarily dismiss a § 2254 petition if it

plainly appears the petitioner is not entitled to relief. Based on the information

available to the Court, it appears Petitioner is not entitled to relief because he failed

to exhaust state remedies before initiating this action.

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 Jud. Cir. Ct. of Ky., 410 U.S. 484 (1973). Here,

Petitioner claims the Board of Probation and Parole erred in cancelling his eligibility

for early release. Missouri law provides at least three avenues for challenging such

determinations: (1) by bringing a declaratory action against the Board, (2) by filing

a state petition for writ of habeas corpus, or (3) by filing a petition for writ of

mandamus. See Wayne v. Missouri Bd. of Prob. & Parole, 83 F.3d 994, 996-97 (8th

Cir. 1996); see, e.g., Spencer v. Hurley, 2014 WL 2558694 (E.D. Mo. Jun. 6, 2014)

(petitioner had filed in state court for declaratory judgment and injunctive relief

under Missouri Rule 87.02 challenging the constitutionality of requiring a prisoner

to admit his guilt in order to participate in MOSOP).

Here, Petitioner does not cite to any attempt to challenge the Board’s

determinations in state court before initiating the instant action, and he offers nothing

to demonstrate exceptional circumstances for such failure. Based on the Court’s

review of the Missouri state court docketing system, Missouri Case.net, it does not

appear that Petitioner challenged the Board’s decision in Missouri state court.

Therefore, this action appears subject to dismissal due to Petitioner’s failure to

exhaust available state remedies before invoking federal habeas corpus jurisdiction.

The Court will order Petitioner to show cause within 30 days as to why his petition

should not be dismissed for failure to exhaust state court remedies.

Petitioner’s Pending Motions

Petitioner has filed three separate motion seeking the same relief as his §2254

petition: (1) “Petitioner’s Motion Requesting His Aug. 17, 2025 Parole Release Date

Granted by the Board Aug. 2023 Be Restored Immediately Because MOSOP

Officials Unconstitutionally Without Authority of Law Cancelled Petitioner’s Date

8-17, 2025, in the month of May 2025 Because Petitioner Berry Still Will Not Admit

Guilt” (Doc. 16); (2) “Motion . . . Requesting for the Reasons in this Motion with

Attached Exhibits A1 Through D-2 as to His August 17th, 2025, Parole Release Date

Be Restored Immediately and Requesting an Evidentiary Hearing to Bring Forth

Witnesses to Proofingly [sic] Prove Retaliation for Not Admitting Guilt Moved

Officials to Cancel Petitioner Berry’s August 17th, 2025 Parole Release Date

Without a Due Process Hearing” (Doc. 18); and (3) “Motion of Proof with His

Attached Exhibits A and B Expressing Respondent By and Through BPP and

MOSOP Officials Are Executing the Unlawful and Unconstitutional Practice

Cancelling an Offender’s Parole Release Date Without a Hearing with the Right to

Appeal” (Doc. 19). Because all three motions are dependent upon Petitioner’s

exhaustion of state court remedies, the Court will deny these motions without

prejudice to refiling, if necessary, after the Court’s determination of the exhaustion

issue.

Accordingly,

IT IS HEREBY ORDERED that the Clerk of Court shall reopen this § 2254

habeas corpus action.

IT IS FURTHER ORDERED that Petitioner shall show cause within 30

days why this action should not be dismissed for failure to exhaust state court

remedies. Petitioner’s failure to show cause within 30 days will result in a dismissal

of this action without prejudice and without further notice to Petitioner.

IT IS FURTHER ORDERED that Petitioner’s pending motions, which seek

the same relief as his § 2254 petition, will be DENIED without prejudice to refiling,

if necessary, after the Court’s determination of whether Petitioner’s claims are

cognizable in these proceedings. (Docs. 16, 18, and 19).

Dated this 13" day of March, 2026

Ae beat 4 Lp

UNITED STATES DISTRICT JUDGE