Appendix — Spencer v. Kemna
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No. 96-
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1996
: RANDY G. SPENCER,
Petitioner,
Vv.
EDITOR'S NOTE MICHAEL L. KEMNA and JEREMIAH W. (JAY) NIXON,
THE FOLLOWING PAGES WERE POOR HARD COPY a -
AT THE TIME OF FILMING, IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
_WILL BE ISSUED,
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Eighth Circuit
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
INGLISH & MONACO, P.C.
JOHN WILLIAM SIMON
Counsel of Record
DAVID G. BANDRE
237 East High Street
Jefferson City, Missouri 65101
(573) 634-2522
Attorneys for Petitioner
Supreme Court, U.S.
FILED
DEC 1 8 1996 w
%
| OFFICE OF THE cuERK | \Y
***o02 =< «eee eee
INDEX
Opinion of the Court Below (Aug. 2, 1996)
Order of the District Court (Aug. 23, 1995) ......
Order of the Court Below Denying Rehearing (Sept. 19, 1996
Clerk's Docket Sheets from District Court .........
33) ee ae ee or oe ee a ae Ae ee Ne on a ae ee a
Order Directing Respondent to Answer .....+4+-e+ «© « «
Respondent's First Motion for Extension of Time ......
Order Granting Respondent's First Motion for Extension ..
Petitioner's Objection to First Motion for Extension ...
Respondent's Second Motion for Extension of Time .....
Entry of Appearance of Respondent's Second Counsel
im the Baésteaect Compete .« eo ec anvtueahe b & © «6
Petitioner's Objection to Second Motion for Extension...
Order Granting Respondent's Second Motion for Extension. .
Reepensee Go Grow Comee .« «seve ses oses tue 6 © 6 8 @
Response Exhibit A (to Respondent's Response to Show Cause)
District Court's Second Order Granting
Respondents Second Motion for Extension ......
Petitioner's Motion and Request for Final Disposition
(Dec. BO. 33) « + 0+ © & © © 8 2.0 6 6.6 eS eee 6
Selected Exhibits from Petitioner's Motion and Request...
District Court's Order to Petitioner to File Reply ....
Petitioner's Letter Explaining that Doc. No. 15
Incineges REPLY . « © © #8 80 6 0 8 6} 6S 6 eS 6 ee ee
Petitioner's Supplemental Response ......4+++-e+e-s
a
63
64
89
95
96
97
Petitioner's Notice of Change of Address
District Court*s Order Noting
Petitioner's Motion for Final Disposition
District Court's Order Denying Petitioners
Motion for Leave to Proceed In Forma Pauperis
and for Certificate of Probable Cause
Petitioner's Petition for Rehearing
with Suggestion for Rehearing En Banc
- She
98
99
100
102
. YY
United States Court of Appeals -
FOR THE EIGHTH CIRCUIT is
No. 95-3629 "7
Randy G. Spencer, *
*
Appellant, *
* Appeal from the United States
Vv. * District Court for the
. Western District of Missouri.
Mike Kemna; *
Missouri Attorney General, *
*
Appellees. *
Submitted: May 17, 1996
Filed: August 2, 1996
Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.
WOLLMAN, Circuit Judge.
Randy G. Spencer appeals the district court’s' dismissal of
his 28 U.S.C. § 2254 petition as moot. We affirm.
I.
Spencer was convicted in Missouri state court of felony
stealing and burglary and was sentenced to concurrent terms of
three years’ imprisonment. He began serving his sentences on
October 17, 1990, and was paroled on April 16, 1992. Spencer’s
parole was revoked on September 24, 1992, following a revocation
hearing before the Missouri Board of Probation and Parole. The
Board revoked Spencer’s parole based on a violation report alleging
that he had committed rape, used cocaine, and used a dangerous
‘The Honorable Elmo B. Hunter, United States District Judge for
the Western District of Missouri.
weapon.
Spencer filed this section 2254 petition on April 1, 1993,
against Mike Kemna, Superintendent of the Western Missouri
Correctional Center, and the Attorney General of Missouri (the
State). The petition alleged that: (1) Spencer was denied the
right to a preliminary hearing on his parole violations; (2) his
conditional release date of October 16, 1992, was suspended without
a hearing; (3) his parole revocation hearing violated his due
process rights, in that he was denied counsel, he was not allowed
to confront adverse witnesses, and the sole evidence against him
was the violation report; and (4) he had to wait four months to
receive a statement of the reasons why his parole was revoked.
The district court ordered the State to show cause by June 3,
1993, why Spencer’s habeas relief should not be granted. The State
requested and received two extensions of time until July 7 to file
a response. Spencer objected to both motions for extensions of
time, stating that the requests for extensions were designed to
vex, harass, and infringe upon his substantive rights. The State
filed a response to the show cause order on July 7, arguing that
Spencer’s claims were procedurally barred, or, alternatively, that
the claims should be dismissed on their merits.
On July 14, Spencer filed a motion for final disposition of
the matter, arguing that because he could be released as early as
August 7, he would suffer irreparable harm if his petition was not
decided before that date, in that his petition would become moot
and he would have no other way to vindicate his rights. Spencer
alleged that the State’s motive in requesting extensions was to
cause his petition to become moot. He also argued the merits of
his petition. Y
Spencer was released on parole on August 7, 1993, and was
discharged from parole upon completion of his sentences on October
16. On February 3, 1994, the district court noted Spencer’s motion
for final disposition and stated that "“[(t]jhe resolution of this
case will not be delayed beyond the requirements of this Court’s
docket." On August 23, 1995, the district court dismissed the
petition for habeas relief as moot because the sentences had
expired.
Spencer argues on appeal that the district court erred in
denying his petition as moot because the court’s own delays caused
the petition to become moot, he will suffer adverse future
consequences due to the denial of the petition, and it is in the
public interest to address the merits of his petition. Spencer
notes that he is currently incarcerated on unrelated charges and
that his prior parole revocation will affect his future chances of
obtaining parole.
II.
An attack on a criminal conviction is not rendered moot by the
fact that the underlying sentence has expired if substantial
penalties remain after the satisfaction of the sentence. Carafas
v.Lavallee, 391 U.S. 234, 237 (1968). Such penalties include the
right to engage in certain businesses, to hold certain offices, to
vote in state elections, or to serve as a juror. Id. The court
will, in fact, presume that collateral consequences stem from a
Criminal conviction even after release. See Sibron v. New York,
392 U.S. 40, 57 (1968); Leonard v. Nix, 55 F.3d 370, 373 (8th Cir.
1995). The Supreme Court has held, however, that no similar
penalties result from a finding that an individual has violated
parole. Lane v. Williams, 455 U.S. 624, 632 (1982).
In Lane, two defendants pleaded guilty to state court
prosecutions without being informed that their negotiated sentences
included a mandatory parole term. Both were released on parole and
reincarcerated for parole violations, and both filed habeas corpus
-3-
petitions requesting their release. Both had completed their
parole terms by the time the court of appeals entered an order
declaring the mandatory parole terms void. Id. at 265-30. The
Supreme Court determined that the petitions were moot because the
petitioners attacked only their sentences, which had expired; they
did not attack, either on substantive or procedural grounds, the
finding that they violated the terms of their parole. Id. at 631,
633.
The Court went on to find that, unlike a criminal conviction,
no civil disabilities result from a parole violation finding. The
Court stated that "{a)t most, certain ncnstatutory consequences may
occur." Id. at 632. The Court found that the collateral
consequence arising from the possible effect of the parole
revocation on future parole decisions was “insufficient to bring
this case within the doctrine of Carafas.” Id. at 632 n.13.
Relying on the relevant Illinois law, the Court noted that the
existence of a prior parole violation did not render an individual
ineligible for parole, but was simply one factor among many
considered by the parole board. Id. at 633 n.13.
We have dismissed a habeas corpus appeal challenging a parole
revocation for lack of jurisdiction as moot when the movant was
again paroled before the case was orally argued. Watts v.
Petrovsky, 757 F.2d 964, 965-66 (8th Cir. 1985) (per curiam). We
considered as too speculative to overcome mootness the argument
that the movant’s parole could once again be revoked and the prior
parole revocation report used against him. Id. at 966.
Spencer first attempts to distinguish Lane on the ground that,
unlike the petitioners in that case, he attacked not only his
sentence, but also the underlying basis of his parole violations.
This distinction has been used by courts of appeals in other
circuits to overcome mootness in the parole revocation context.
See United States v. Parker, 952 F.2d 31, 33 (2d Cir. 1991);
-4-
Robbins v. Christianson, 904 F.2d 492, 495-96 (9th Cir. 1990). It
must be recognized, however, that the Court in Lane went on to hold
that the possible collateral consequences in future parole hearings
stemming from a finding of parole violation are insufficient to
overcome mootness. Lane, 455 U.S. at 632-33 & n.13. This part of
the Court’s holding Spencer cannot overcome.
Spencer attempts to further distinguish Lane on the ground
that it relies on Illinois, rather than Missouri, law. We find
this purported distinction unpersuasive. The Illinois regulations
relied upon in Lane explicitly provided that the parole board
should consider an individual’s prior parole violations as a factor
in determining whether parole should be granted. Lane, 455 U.S. at
639 (Marshall, J., dissenting). Under Missouri statutes and
regulations, the Board does not explicitly rely on a prior parole
violation even as one factor in its decision regarding whether to
grant parole.’ Lane’s holding, therefore, is even more applicable
*The Missouri statute concerning parole provides, in relevant
part:
When in its opinion there is reasonable probability that
an offender of a correctional center can be released
without detriment to the community or to himself, the
board may in its discretion release or parole such person
except as otherwise prohibited by law.
Mo. Rev. Stat. § 217.690.1 (1994).
In addition, the statute provides that “[(t)he Board shall
adopt rules . . . with respect to the eligibility of offenders for
parole.” Mo. Rev. Stat. § 217.690.3 (1994).
Pursuant to this section, the board has adopted regulations
stating that the reasons for its decisions to deny parole include:
1. Release at this time would depreciate the
seriousness of the offense committed or promote
disrespect for the law;
2. There does not appear to be a reasonable
probability at this time that the inmate would live
and remain at liberty without violating the law;
3. The inmate has not substantially observed the rules
to a case arising under Missouri law.
Spencer finally attempts to distinguish his case from both
Lane and Watts on the ground that the collateral consequences of
his parole revocation are not speculative as to him, in that he is
once again incarcerated and is facing new parole hearings.
Although Spencer’s possible collateral consequences are not as
speculative as those in Watts, 757 F.2d at 966, we conclude that
they remain too speculative to overcome a finding of mootness.
Given the Board’s wide discretion in releasing a prisoner on
parole, we cannot say that the Board will rely on Spencer’s
previous parole violation in making its decision. Moreover,
Spencer placed himself in his present position, in which collateral
consequences stemming from his parole revocation become more
likely. As noted of the petitioners in Lane, Spencer was "able--
and indeed required by law--to prevent such a possibility from
occurring.” Lane, 455 U.S. at 633 n.13.
Iirtr.
Spencer argues that his action should not be dismissed as moot
because the important public interest in due process in parole
revocation proceedings excepts his case from the mootness doctrine.
He argues that because of the important public interest, he need
not show that he will be personally affected by the outcome.
To be excepted from the mootness doctrine, the matter must be
of the institution in which confined; and
4. Release at this time is not in the best interest of
society.
Mo. Code Regs. tit. 14, § 80-2.010(9)(A) (1992).
The regulations explicitly state that a parole violator “can
be considered for parole at a later time." Mo. Code Regs. tit. 14,
§ 80-4.030(4) (1992).
"“‘capable of repetition, yet evading review,’”" and there must be
“‘a reasonable expectation that the complaining party would be
subjected to the same action again.’" Lane, 455 U.S. at 633-34
(quoted citations omitted); see also DeFunis v. Odegaard, 416 U.S.
312, 316 (1974) (per curiam) (although state law may save case from
mootness based on public interest, federal courts require
litigants’ rights be affected). Spencer must show a “reasonable
likelihood" that he will be affected by the Board’s allegedly
unconstitutional parole revocation procedures in the future. See
Honig v. Doe, 484 U.S. 305, 318 (1988). "“{A} mere physical or
theoretical possibility” is insufficient to satisfy the test.
Murphy v. Hunt, 455 U.S. 478, 482 (1982).
We do not find a reasonable likelihood that Spencer will again
be affected by the Board’s parole revocation procedures. Assuming
that Spencer is paroled from his present incarceration, we will not
assume that he will violate his parole terms in order to again
undergo revocation proceedings. See Honig, 484 U.S. at 320
(generally unwilling to assume party will repeat misconduct).
The order of dismissal is affirmed.
HEANEY, Circuit Judge, concurring.
I concur in the result reached by the majority only because I
agree we are bound by the United States Supreme Court’s decision in
Lane v. Williams, 455 U.S. 624 (1982). Were I writing on a clean
slate, I would reverse the district court because it seems clear
that Spencer may suffer collateral consequences as a result of the
revocation of his parole. ~—
It is unfortunate that the decision on whether the revocation
hearing comported with due process was delayed for so long that the
matter became moot by Spencer’s release from prison. If nothing
else, this case highlights the necessity of making prompt decisions
-J~-
in revocation cases.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
UNITED STATES DISTRICT COURT FOR THE/
WESTERN DISTRICT OF MISSOURI :
WESTERN DIVISION
RANDY SPENCER,
Petitioner,
Case No. 93-0299-CV-W-3-P
vs.
MIKE KEMNA,
Respondent.
ORDER DISMISSING CASE
Petitioner brought this case under 28 U.S.C. § 2254 to
challenge the revocation of his parole from concurrent sentences
for burglary and stealing. The record shows that petitioner was
released from incarceration approximately four months after filing
this case, and that he completed service of his maximum term
approximately two months later. See Doc. No. 13, p. 1, n.i
(State’s response). Because the sentences at issue here have
expired, petitioner is no longer "in custody" within the meaning of
28 U.S.C. § 2254(a), and his claim for habeas corpus relief is
——
Accordingly, it is ORDERED that this case is dismissed for the
reason stated herein.
SENIOR DISTRI
Kansas City, Missouri,
AUG 23 1995
Dated:
ee
}
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 95-3629WMKC
Randy G. Spencer, :
Appellant, ’
nad * Order ns Petition for
vs. * Rehearing and Suggestion
* for Rehearing En Banc
Mike Kemna; Missouri Attorney Xs
General, f
Appellees. ?
The suggestion for rehearing en banc is denied. The petition
for rehearing by the panel is also denied.
September 19, 1996
Order Vi at the Direction of the Court:
dre ©.
Clerk, U.S. Court of AppeaIs, Eighth Circuit
10
Lead Docket: None
RANDY G SPENCER
MIKE KEMNA
TERMED APPEAL
PPROSE
U.S. District Court
Western District of Missouri (Kansas City)
CIVIL DOCKET FOR CASE #: 93-CV-299
Spencer v. Kemna, et al
Assigned to: Judge Elmo B. Hunter
Referred to: Prisoner Pro Se
Demand: $0,000
Filed: 04/01/93
Nature of Suit: 530
Jurisdiction: Federal] Question
Dkt# in other court: None
Cause: 28:2254 Petition for Writ of Habeas Corpus (State)
Randy G Spencer
509407
[COR LD NTC] [PRO SE]
Acc
Algoa Correctional Center
P.O. Box 538
Jefferson City, MO 65102
petitioner
Ronald L. Jurgeson
[COR LD NTC]
Jackson County Courthouse
415 E. 12th St.
Ste. 200
Kansas City, MO 64106
(816) 881-3355
respondent
MO ATTY GENERAL Ronald L. Jurgeson
respondent (See above)
(COR LD NTC)
| HEREBY ATTEST AND CERTIFY ON (OCT 1 5 1995
THT THE FOREGOING CoC MEAT Ie & FCLU TRUE AND
CONNECT COPY OF Tieé CorCINAG CO’. ria: at JFFICE
ANC IN ¥e PESAL CULTOLY
RK. F. COR" OR
Cit tsb. ee SO
Westinn Bioiawl ce *
~ °
Docket as of October 13, 1995 10:25 am NON- PUBLIC
Page 1
11
INTERNAL USE ONLY: Proceedings include all events.
4:93cv299 Spencer v. Kemna, et al PPROSE
4/1/93 1 PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 USC 2254
w/reg to proceed ifp (PROV. filed pursuant to Court en banc
Order of 12/3/68) Def’s Order to pet. w/ ifp forms. NO
INFO COPY. (ce) [Entry date 04/05/93)
4/1/93 -- Notice: Case referred to Pro Se office to Prisoner Pro Se
(ce) [Entry date 04/05/93]
4/5/93 2 DEFECTS ORDER by Judge Elmo B. Hunter P 116 748 846 to
Spencer (cc: all counsel) (ce)
4/8/93 3 AFFIDAVIT of Randy G. Spencer (ce) [Entry date 04/12/93]
4/12/93 4 Mail Returned addressed to Randy G Spencer P 116 748 846
Doc. 2, rec’d 3/6/93 (ce)
4/15/93 -- Receipt# 55333 $5.00 filing fee of Spencer. (ce)
[Entry date 04/16/93]
5/3/93 5 ORDER T SHOW CAUSE: by Judge Elmo B. Hunter ;ordered to
show cause by 6/3/93 (cc: all counsel) (ce)
[Entry date 05/05/93]
6/1/93 6 MOTION by petitioner Randy G Spencer to extend time to
file response to Court’s Order to Show Cause. (ce)
[Entry date 06/02/93)
6/3/93 7 ORDER by Judge Elmo B. Hunter granting motion to extend
time to file response to Court’s Order to Show Causei to
6/23/93. [6-1] (cc: all counsel) (ce) [Entry date 06/04/93)
6/8/93 8 Objections by petitioner Randy G Spencer to resp. mtn
ext. (ce) [Entry date 06/09/93)
6/23/93 9 MOTION by respondent to extend time to answer (ce)
[Entry date 06/24/93]
6/23/93 10 ATTORNEY APPEARANCE for respondent : Ronald L. Jurgeson (ce)
[Entry date 06/24/93)
6/30/93 11 Suggestions by petitioner Randy G Spencer in opposition to
motion to extend time to answer [9-1] (ce)
[Entry date 07/01/93]
6/30/93 12 ORDER by Judge Elmo B. Hunter granting motion to extend
time to answer [9-1] 7/7/93 for MO Atty General, for Mike
Kemna (cc: all counsel) (ce) [Entry date 07/06/93)
7/7/93 13
Beapenes by respondent to Order to show cause why a writ
of as corpus should not be granted. (ce)
[Entry date 07/09/93)
Docket as of October 13, 1995 10:25 am Page 2 NON-PUBLIC
12
TERMED APPEAL
INTERNAL USE ONLY: Proceedings include all events.
‘ TERMED APPEAL =
4:93cv299 Spencer v. Kemna, et al PPROSE a
7/13/93 14 ORDER by Judge Elmo B. Hunter That resp. is granted to IN THE UNITED STATES peg Ae Ss
7/7/93 to file response to pet’s pet. as by the order to WESTERN DISTRICT OIVISION i. fn
show cause. (cc: all counsel) (ce) (Entry date 07/16/93] VOM RN
7/14/93 15 MOTION by petitioner Randy G Spencer for final disposition
of this matter (ce) [Entry date 07/16/93) 9 o.7,0.2 BS Cy _ y “e 3
PERSONS IN STATE I
7/15/93 16 ORDER by Judge Elmo B. Hunter (1) pet. file a reply to HABEAS CORPUS UNDER 28 U.S.C. SECTION 2254
resp’s answer, filed 7/7/93, w/n 30 days from the date of
this Order; (2) pet’s failure to do so will resialt in
dismissal of this case w/o further notice; and (3) the Z
Clerk send pet. a copy of this Order by reg. and cert. Name: Pandy G. Spencer
mail, rrr. P 246 793 461 to Spencer. (cc: all counsel) (ce) #176948
(Entry date 07/20/93) Prison Number: ; a oe
Place of Confinement: W.i.C.C., RR. 5., Box j= ~
7/26/93 17 Supplemental by petitioner Randy G Spencer re motion for . District of + jc-ouxri
final disposition of this matter [15-1] (pt) United States District Court Western _ eg eee
No: (to is] supplied by Clerk of the JU. S.
7/27/93 18 Mail Returned of green cert mail card P # 246 793 461, order Case Court )
of 7/15/93 addressed te Randy G Spencer, signed by J Bawman PETITIONER
on 7/21/93 (pt) [Edit date 07/27/93] Rendy G. + vencer
TYour Pull Name ) Ve
3/13/93 19 NOTICE by petitioner Randy G Spencer of change of address RESPONDENT
Ps to c/o Robert & Linda Smothers, Lot A-15, Terra Linda nike Kemne, Suvt., .li.C.C. if
tmasr Gun ee wr Ea sg Sn A (Name of Warden, Superintendent, Jailer, or authorized person having custody
petitioner.)
2/3/94 20 ORDER by Judge Elmo B. Hunter taking under advisement on onl
the motion for final disposition of this matter [15-1] (cc: ;
all counsel) (ce) [Entry date 02/04/94] THE ATTORNEY GENERAL OF THE STATE OF — Vissouri _
3/23/95 21 ORDER by Judge Elmo B. Hunter That this case is dismissed. sentence be served
terminating case (cc: all counsel) (ce) (If petitioner is magrcamony he Ear eR pan meaphton where o judgment
itioner must under a
3/23/95 22 CLERK’S JUDGMENT Case dismissed for the reasons stated. oe EF pecitienst has a sentence to be served in A . under
Entered on: 8/23/95 (cc:All Counsel) (ce) federal judgment which he wishes to attack, petitioner should
28 U.S.C. Section 2255, in the federal court which entered the judgment.)
3/25/95 -- MAIL RETURNED: judgment [22-1], order [21-2] returned as ae
- undeliverable to Randy G Spencer for petitioner Randy G Inst ione - Read Carefull
Spencer (ce)
the
handwritten or typewritten, and signed by
3/5/95 23 NOTICE OF APPEAL by petitioner Randy G Spencer from Dist. (1) This-petition rege Bap Bee a Any false statement of a material fact
Court decision [22-1] Filed 8/23/95 Entered 8/23/95 petitioner under prosecution and conviction for perjury. All
Paid $ 0 Rect. #0 (dw) may serve as a basis for on the form.
; questions mist be answered concisely in the proper space
10/5/95 24 ORDER by Judge Elmo B. Hunter That pet’s mtns for leave to
proceed on appeal ifp and for a cert. of probable cause are
denied. (cc: all counsel) (ce) [Entry date 10/11/95]
Socket as of October 13, 1995 10:25 am Page 3 NON- PUBLIC
| which
* (2) Additional pages are not permitted except with respect to the a
tion
grounds for relief. No cita
ad Sy aaumied Sots vt beiefs or arguments are submitted, they should
be submitted in the form of a separate memorand.sn.
(3) receipt of a fee of $S your petition will be filed if it is in proper
(4)
(5)
(6)
(7)
(8)
If you do net have the necessary filing fee you may request permission to
proceed in forma pauperis, in which event you must execute the declaraticn
on the last page, setting forth information establishing your inability <o-
the fees and costs or give security therefor. If you wish to orcceed
in forma pauperis, you must have an authorized officer at the oenal
institution complete the certificate as to the amount of money and
securities on deposit to your credit in any account in the institution.
Only judgments entered by one court may be challenged in a single petiticn.
If you seek to challenge judgments entered by different courts either in the
same state or in different states, you must file separate petitions as to
each court. ; :
Your attention is directed to the fact that you must include all grounds for
relief and all facts supporting such grounds for relief in the petition you
file seeking relief from any judgment of conviction. d
When the petition is fully completed, the original and two — must be
mailed to the Clerk of the United States District ss is
Cf_ice of +t ler:
United Stetes District Court, 811 Grendg save Benses City bio.
Petitions which do not conform to these instructions will be returned with a
notation as to the deficiency.
}
|
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN ppeemict OF MISSOURI
woe y
DIVISION
PETITION
1. Name and location of court which entered the jucgment of convicticn under
attack? hissouri Dept. of Prob. & Perole,
Jef-erson City, iissouri
2. Date of judgment of conviction: Sevtenber 24, 1992 parole revoked
3. Length of sentence: the remeinder of my current serten
4. Nature of offense involved (all counts): Viol=tion of Sipte =
Use of Drugs end Posession of 2 deadly weenc
5. What was your plea? (Check one )
(a) Not Guilty m2, > §
(ob) Guilty sa aniiatii
(c) Nolo Contendere
If you entered 4 guilty plea to one count or indictment, and a not guilty plea to
another count or indictment, give details:
6. Kind of trial: (Check One) (a) Jury " (p) Judge only Possie ka.
7. Did you testify at the trial? Yes 1 No ( ]
8. Did you appeal from the judgment of conviction? ves €-) no ( ]
°. If you did appeal, answer the following: ;
(a) Mame of courts Circuit Court of Dekelh,Co lou
Petition for srit of LBhens COraus denied
of conviction and sentence, have
judgment
you previously filed any petitions, applications, Rule 27.26 motions or other
motions with respect to this judgment in any court, state or federal?
16
ll. If your answer to 10 was “yes,” give the following information:
(a) (1) Name of court: lo. © of Anveels. k.C..!0.
(2) Nature of proceeding: \irit of Review; reouest 20r Writ
of Certucrior #47416
(3) Grounds raised: Den; Herri
| a c _ 6 -
£ sen j ot my
. a # ” pate ; -
(4) Did you receive an evidentiary hear on your petition,
application, or motion? Yes [ ] No (.
(5) Result:
(6) Date of result:
(>) As to any second petition, application or motion give the sam
information:
(1) Name of court: eee ee,
(2) Nature of proceeding: _
(3) Grounds raised: wes not told by ~nerole boerd KX at
my revocetion heering why there where no live witnesse:
no evidence other then the vzrole violrtion report
thet I denied +11 sellig=tions of v=role viol=tion,
th-t I wee revoked +t #& ¢ | erin
(4) Did you receive an evidentiary — on your petition,
No
Cc
application, or motion? Yes { )
(5S) Result: “rit cf Reviews re yest for Certu-rior
(6) Date of result: denied on ‘ebuory 12, oS3
(c) As to amy third petition, application 2c motion, give the sam
information:
mi ScOuri Susrene Court.
woe -
rnd the fects relied uvon by the nzrol
e borrd, -s to
vay my vocrole wes revoked.
(d)
(e)
(4) Did you receive an evidentiary hearing on your petition,
application, or motion? ‘es Cj No C4
(5) Result: petition for writ of Hebecs Corvus,
(6) Date of result: on Merch 23, 1993
Did you appeal to the highest state court having jurisdiction the
result of action taken on any petition, application or motion?
(1) First petition, etc. Yes (x) No { ]
(2) Second petition, etc. Yes (1X) No {
(3) ‘Third petition, etc. Yes (0 No { ]
tf you did not appeal from the adverse action on any petition,
application or motion, explain why you did not:
12. state concisely every ground on Wich Joey ewpgorting each gram. if
Y: hr ground. If
pages
(i)
(3)
Conviction cdtained
som co by a violation of the privilege against self-
Conviction obtained by the unconstitutional fai prosec:
lure of the i
to disclose to the defendant evidence favorable to the defendant. a
Conviction obtained by a violation of the tection
pro against double
Conviction obtained by action of a grand
unconstitutionally selected and impanelled. ee eee
Denial of effective assistance of counsel.
Denial of right of appeal.
A. Ground one: Denied my right to = yrelininery heerine on
Support FACTS (¢t your
law): _ — cosy Ealatig wishes citing casts oF
1 + ke c 7 #4 ~ ~ L
the yviol-tion rerort «nd it bod = third -~lleged norole
vicl=tion o- it = si £ _
B. Ground two: [iv fric ition-) 1 -
16, 1992 yrs token £ Si thout = he- 4
— FACTS (tell your story: briefly without citing cases or
lnder £56 T.--w Tre t a . ‘
oO h-ve = conditions re} aise 1-3 s
Cctober 15, -
Ke | 19
|
!
13.
14.
15.
y entire yerole revocetion herring ws
Cc. Ground three: -
Flewed end in violetion of my aue process rié
Gopstitutions lly
— ing FACTS (tell your story briefly witmout citing cases °F
:
wes denied my right to © represenctive of my ché@ice «t my
revocction herring, counsel, to cross ex*mine end to con-
naverse Witnesses, I wes not told ct the hecring
front eny
why there where no live witnesses, there w=s no evidence et
ec but the viol-tion report (he-rsey), thrt I wes
ilty of Prrole Violstion brsed soley on viol..tion repo
D. Ground four: Th-t i ts denied my right to * et-tement of
ence relied on for pyrrole revocetion
oo FACTS (tell your story briefly without citing cases or
:
“het J ceen ithe mc role bo- rd _on Sevtember 23, 1992 end the
policies of the bo. Dent. of Probetion end Prrole strtes
- :s eun> w en ~newer withen (20) drys,
however, I] b-4 to wi 5t four ponths end then to get °n
newer on “hy 2y > role wis viol-ted, I ned to file -n
inn re grievyonce nd then 1 sins gut tht — po role poerd
b ce soley on the viol: tion repoLt.
viol+ted my pv role,
If amy of the grounds listed in 12A, B, C, and D were not previously
presented in any other court, state or federal, yt ee
vere not so presented, and give your reasons for not present them:
I heve not br-ng this uc CF I couldnt until now, but the
courts thet 1 nve decn througa hve n t Liowed me to re-
never tne resrondcents _newers to my
pute cr to otherwice
I file tnem :nd then tney “re aenied.
vetitions,
Do you petition or appeal now pending in any court, either stace or
federal, as to the judgment under attack? Yes ee No ()
Give the name and address, if known, of each attorney who represented you in
the following states of the judgment attacked herein:
© peen crvointed or rep~
on pzrole viol: tion
(a) At preliminary hearing ho - ttore h:
resented me throush =y entir leg orocess,
(b) At arraignment and plea
——
is
20
(c) At trial
(4) At sentencing
(e) On appeal
(f) In any post-conviction proceeding
(g) On appeal from any adverse ruling in a post-conviction proceeding.
No ( ] three clleged nerole viol-tions
17. Do you have any future sentence to serve after you complete the sentencr
Yes ( ] No {xt
(a) If so, give name and location of court which imposed sentence to be
served in the future:
(b) And give date and length of sentence to be served in the future:
{
(c) Have you filed, or do you contemplate fil:ng, any petition attackir
the judgment which imposed the sentence to ce served in the future?
Yes ( ] No (-°)
Wherefete, petitioner prays that the Court grant petitioner relief to whix
petitioner may be entitled in this proceeding.
ure
I declare (or certify, verify, or state) under 2 6 that ¢t
foregoing is true and correct. Executed on
‘
pet:
o> 21
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RANDY G. SPENCER,
Petitioner,
Case No.
vs. 93-0299-CV-W-3-P
MIKE KEMNA,
Respondent.
Petitioner, who is incarcerated at the Western Missouri
Correctional Center in Cameron, Missouri, has filed pro se this
petition for a writ.of habeas corpus under 28 U.S.C. § 2254. He
has paid the $5.00 filing fee required by 28 U.S.C. § 1914(a).
Petitioner challenges the revocation of his parole. ‘ie lists
the following grounds for relief: (1) he was denied the right to
a preliminary hearing concerning alleged parole violations; (2) his
conditional release date was suspended without a hearing; (3) his
parole revocation hearing was constitutionally flawed and did not
comport with the principles of due process; and (4) he was denied
the opportunity to review the evidence relied on in revoking his
parole.
Granting petitioner’s claims a liberal construction, see
Haines v. Kerner, 404 U.S. 519 (1972), they do not appear to be
frivolous or malicious.
Accordingly it is ORDERED that respondent answer the petition
22
ot alten
within thirty (30) days from the date of this Order, and show cause
why the relief sought should not be granted.
B. R . 2
UNITED STATES ‘DISTRICT COURT
Kansas City, Missouri
Dated: 5 - s-'93
}
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RANDY G. SPENCER,
)
)
Petitioner, )
) >
v. ) No. 93-0299-CV-W-3- r-
) ee i &y ”
MIKE KEMNA, )
)
Respondent. )
OR SION OF T
Comes now respondent, by and through counsel, and states as
follows in support of his motion for an extension of time in which
to file his respon... to this court's order to show cause why a writ
of habeas corpus should not be granted.
Be That respondent's response in the above-styled cause is
due on or before June 2, 1993.
y That counsel has, within the past weeks, filed numerous
responses in federal habeas corpus cases, written and filed
numerous briefs, and prepared for and made several oral arguments
in the various courts in the State of Missouri. Due to this
litigation, respondent has been delayed in the completion of his
brief in the above-styled cause.
3. That the request for an extension is not designed to vex,
harass or infringe in any way upon the substantive rights of
appellant.
WHEREFORE, for the reasons herein stated, respondent prays
this court grant his motion for an extension of time for twenty-one
(21) days, up to and including June 23, 1993.
STEIN AY | ae
-__
-
CERTIFICATE OF SERVICE
I hereby certify that a true
and correct copy of the
foregoing was mailed, postage
prepaid, this _-~ day of
May, 1993, to:
Randy G. Spencer
Reg.No. 176948
W.M.C.C.
Route 5, Box 1-E
Cameron, MO 64429
em
FRANK A. JUNG ;
j
Respectfully submitted,
JEREMIAH W. (JAY) NIXON
Attorney General
ee in.
pr tt an
FRANK A. ——
Assistant Attorney General
P. O. Box 899
Jefferson City, MO 65102
(314) 751-3321
Attorneys for Respondent
{ }
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RANDY G. SPENCER,
)
)
Petitioner, )
)
Vv. ) No. 93-0299-CV-W-3-P
)
MIKE KEMNA, )
)
Respondent. )
ORDER
Upon motion of respondent, and for good cause shown, it is
ORDERED that respondent is granted an extension of time of
twenty-one (21) days, up to and including June-23, *%93, to respond
to this Court's Order to show cause.
UNITED STATES DISTRICT JUDGE
Dated:
Me: + . ea eat ls shia . h* ; _ , ap 7 .
ie ee i te Se eg Lee OR ee oe i, ane be Bog A Se. =: 4 Oe, a ae aly i to-5 >
‘2
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RANDY G. SPENCER,
Petitioner,
)
)
)
)
Vv. ) No.
)
MIKE KEMNA, )
)
)
Respondent.
ORDER
Upon motion of respondent, and for good cause shown, it is
ORDERED that
respondent is of time of
granted an extension
twenty-one (21) days, up to and including June 23, 1993, to respond
to this Court's Order to show cause.
ri .
TED STATES PisTRICT JUDGE
Dated: G - o- "i d
5 ' _ © — ma = 2 ~~ 2 - | i al oad waa
2 te te Bah » Be Pe * Bee ee eae TR ee ee Ae ya
“°STS 4 DIST2ISE OF LISSOVU<1
23. os L/ESI &
tHIOY *. SisNosa,
Fetitioner,
ics 234,
tesvoncent.
:
m
!
ee ee ee ee Se See See” See”
Somes now, the retvitioner,
cnty 3. Spencer, =
conf in objection too the resronterts reruest for cn extension
sine, this vetitione. «ill svete -s follows:
1. Thet the resrornte.tz =5t19
above entitle@ ecsuse of iction, it ¢
de *enied.
?, Im fact,
- for en extension so
= a mw
vate ’
shem cleée motion cm4 shovle
she re- orients very first stéitement, in rsrogrecr
“1, is frlse infor-ctior to this court, ss the rerron*e-ts rerronse
+o this courts shor ciise or*er, ¢> not ue or: or tefore cvme 72,
1333 cs the resnon*ent as eurte*, out rrther, she ro non*cnts ri-
enonse +o this courts show c-use or*er is rot “ne until dune 13,
1333, # #iffercnce of elever *.*5 Se eo Eke": *-e@ $:.7t tae Pre-
enon*tent uss buse# iit ve vest cor nm extoneisr of time om, nove
' ven tnisc cov't ~-?"sr- che rarross.t2 re voces or <n Bre
ever,
sebles in eflect when «ation “is Tie
Cc
tension of tine, vc "Timeliness oF =ovion: murt ve 2
aw, 32€, ile: v 3ac"-, 732
= —- o-+et . : rs ° ‘7S .. ee
3,24 1355, e-necl cfter reuint, “22 2.54 low Vane 24335).
3. «@ feet is, trier court
this courts shov ecvre or“’er,
or@er, “ote bein> ..y li, +22
hes waite? (20) *:rr 9° vis
en extenesion of sine m* ever tian, 10 “r 2-25 &
teceuse ne thou~nt we vec Ovt OF tine.
- #4 - - “_ oer
~ roe he Pe enur r oe -
within (29) «cvs oF
“ov ever,
3»
.23) “os tine citit,
oo motaer.. cs S°s.~-:
sore reeronmsitic
os
e*
s.2 ~ecr-on“ents
“oe
‘ot-rmineé od;
pe ere4 she reenon’ent to resroné to
te of seid
cstorney
seZeore recuerting
“t nc only *one it
i
ve beer.
oe
-_ a+. y }
fents attorney hes rresented (2) two, sererév. and distinct,
lies rni félsities to this court, ené thet eny further ple-céings
“rom the resnonéent end/or his cttorney, snoul? be viewed vith ‘
zreat care tnd sxeptism, essviceilly vhen this court h2s to ed-
jucete tais petitioners constitutionally flave? nerole revocct-
tion heérins -n4 this retitioners illegel incarceration, «hich
}.-
s being justified by the res~on’ernt nd his “ttorney.
THORDTFURE, this ~etitioner preys thet this honorible court .
will teny the resronients motion ent re-uest for cn extension
of cime, on*, thet the respon“ent vill be orteref to respon? to
this courts show céuse orfer, by the Geedline ?rte of szi* or*er.
SOPSULLY SUBiJA DD SY,
tency &./ Spencer/ #1 (0546
\. elee C. c./ Ree * Box 1-E
Cameron, »issouri-64429
CE2TIPIC:3S O- SE-JICS
I nerebr certizty thet 2 corms = the Soresoing wes meileé,
or U.S. : fil, postcsze pre-neit, chiefB acy of June, 1333, to:
Frenik -. Jung
-tsistint “ttorney tener2l
Fe--e BOX 335
Jgeitterson City, -iszouri
95192
23
>
‘=
’
;
IN THE UNITED STATES DISTRICT COURT FOR THE f:
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RANDY G. SPENCER, )
Petitioner,
vs. No. 93-0299-CV-W-3-P
MIKE KEMNA,
Respondent. !
COMES NOW respondent, by and through counsel, Jeremiah W.
"Jay" Nixon, Attorne, Seneral of the State of Missouri, and Ronald
L. Jurgeson, Assistant Attorney General, and states as follows in
support of his motion for extension of time in which to respond:
1. That respondent's response in the above-styled cause is
currently due on or before June 23, 1993;
2. That counsel has, within the past weeks, filed numerous
responses in federal habeas corpus cases, and has written and filed
numerous briefs in the Eighth Circuit Court of Appeals and has
prepared for and made several oral arguments in the Eighth Circuit.
Due to this litigation, respondent has been unable to complete the
response in the above-styled case;
3. That this requested extension in not designed to vex or
harass petitioner. Petitioner's substantive rights should not be
adversely affected.
ow
7 ORIGINAL==ase_i_.
;
WHEREFORE, for the reasons stated above, respondent requests
an extension of time of fourteen (14) days, up to and including
July 7, 1993, in which to respond in the above-styled cause.
Respectfully Submitted,
JEREMIAH W. "JAY" NIXON
ae ey General
L.\ JURGESON
Assistant Attorney General
Missouri Bar No. 35431
Penntower Office Center
3100 Broadway, Suite 609
Kansas City, Missouri 64111
,-=5) 889-5000 ,
(816) 889-5006 FAX
Attorneys for Respondent
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
was mailed, postage prepaid, this 2:3 day of June, 1993, to:
Ys
Randy G. Spencer
Reg. No. 176948
Western Missouri Correctional Center
Route 5, Box 1-E
Cameron, Missouri 64429
RONALD (L. JURGESON
Assistant Attorney General
31
}
IN THE UNITED STATES DISTRI“T COURT FOR THE
WESTERN DISTRICT OF AISSOURI
WESTERN DIVISION
RANDY G. SPENCER,
)
)
Petitioner, .
vs. ) No. 93-0299-CV-W-3-P
)
MIKE KEMNA,
Respondent. )
ENTRY OF APPEARANCE
COMES NOW Ronald L. Jurgeson, Assistant Missouri Attorney
General, and enters his appearance on behalf of respondent.
Respectfully Submitted,
JEREMIAH W. "JAY" NIXON
General
L. JURGESON
Assistant Attorney General
Missouri Bar No. 35431
Penntower Office Center
3100 Broadway, Suite 609
Kansas City, Missouri 64111
(816) 889-5000
(816) 889-5006 FAX
Attorneys for Respondent
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
was mailed, postage prepaid, this 22-A day of June, 1993, to:
Randy G. Spencer
Reg. No. 176948
Western Missouri Correctional Center
Route 5, Box 1-E
Cameron, Missouri 64429
IN THS ITSD STATES DISTRICT COURT 0dR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RANDY G. SPENCER,
Petitioner,
vs. Case No. 93-0299-
MIKE KEMNA,
Respondent.
a ee i ee ee ee ee”
PSTITION=RS' OBJSCTION TO THS RESPONDENTS
" -
“Ss a x me
Comes now, the petitioner, Randy G. Spencer, pro-se, and in
objection to the resvondents' second request for an extension of
time, this petitioner will state as follows:
1. That-on June 2, 1993, @ Mr. Prank a. Jung, entered into
these pleadings as the respondents attorney.
2. That when ir, Jung had entered into these proceedings, as
the respondents attorney, Mr. Jung had requested an extension of
time, up to and including June 23, 1993, a period of (3) weeks,
in which to make anf file a response for the respondent, to this
courts show cause order of May 13, 1993, and, Mr. Jung had made
his request for an extension of time, on what he thought was the
last possible day in which to do so; June 2, 1993, however, and
in reality, Mr. Jung still had eleven (11) days of the original
show cause order time, to make and file a respons to this courts
show cause order and that such a response was not due until June
13, 1993.
3. That when a court considers a motion for an extension of
time, it has wide discreation to grant or to deny such &@ motion,
F.R.C.P., rule 6(b), however, requests are usually granted on a
showing of good cause, Creedon v Taubman, 8 F.R.D. 268 (D,C.Ohio
1947); and presuambly with the understanding, that the time that
is to be granted, will be time spent on purposes for which the
time was requested.
4. That on June 23, 1993, the day in which Mr. Jung was to
have filed a response to this courts show cause order, for the
respondent, instead of a response to this courts show cause order
being filed, a Mr. Ronald L. Jergeson entere into these pleadings,
(2) Document «_——__L/
x
| case, nor is this court granted such motion, releaving
| Mr. Jung of his responsibilities, to the respondent or
this court.
. H. That without being relieved of their responsibilities,
end, without filing a response to this courts show cause
order of May 13, 1993, on June 23, 1993, Mr. Jung and the
respondent have violated this courts order of June 3, 1993.
6. That on June 23, 1993, when Mr, Ronald L. Jergeson made
his appearence, for the respondent and as his attorney, that such
an appearence should not and does not satisfy this courts order
of June 3, 1993, that a response to this courts show cause order,
was due on June 23, 1993, not an entry of appearence, by an at-
torney.
7. Thatwhen Ronald L. Jergeson had made his appearence, and,
instead of requesting an extension of time, because this petit-
ioners case had just been transferred to him, and that he was un-
prepaired and unable to file a response to this courts show cause
order, or that a response was forthcoming and that an extension
of time was needed to finish the response up, from the documents
and materials that Mr. Jung had sent him; Mr. Ronald L. Jergeson
requested an extension of time, based on the exact same set of
reasons and egcuses, that Mr. Jung had used.
8. That it appears that Mr. Jergeson has assertained, that
sence the reasone and excuses that Ir. Jung had used, had worked,
that he too would use them.
9. That a question of “truthfullnesse" must be drawn, when Ir,
Jergeson had used the e set asonse end excuses, that
Mr. Jung had used, in meking his request for an extension of time,
as a request for an extension of time cannot s::0w good cause, if
it ie based on lies, or wniform application.
10. Purther, both of the attornies in this case, for the re-
spondent, have claimed that their motions for an extension of time,
where not designee to vex, harass, or t@® infring on thie petit-
ioners substantive rights, end, they further state that such 4 re-
quest for an extension off time, is meceseary, because of “other
. litigations which hae caused them to be unable or delayed to file
a respon®e to thie courte show cause order.
ll. “hat if the reevondente requests for an extension of time,
where not desigmu to vex the litigation of ‘ds case, and this
petitioners substantive rights, then why have both of the attorn-
ies in this case, for the respondent, waited until the day in
which the response to the show cause order was due, and then make
their appearence and request for an extension of time.
12. The attorneies for the respondent, are not stupid, and
they could have or would have known ahead of time, that “other
litigation", could possibly cause them to be delayed in their re-
sponse to this courts show cause order, for the respondent, but
instead of the respondents attornies forseeing any possibly de-
lays, or making their appearance at the earliest possible moment,
and making their request for an extension of time, then, they
both waited until the day in which the response to this courts
show cause order was due, befor making their appearence and re-
questing an extension of time, denying thi etitioner, the op-
portunity and ability to file a motion of objection to their re~-
quests for extensions of time, until after this court has granted
their requests.
13. That the respondents requests for an extension of time,
designed to VEX, harass, and to infringe on this petitioners
substantive rights.
THERZTPORE, this petitioner prays that this court will deny
the respondents "second request" for an extension of time, and to
require that '&. Frank A. Jung, make and file a response to this
courts show cause order, like he was granted time in which to do
so, that this court put a stop th the vexation of this case, by
the respondents attornies, and that if this courts grants the re-
spondents “second request” for an extension of time, that this
court make sure that it is the last extension of time, at this
point in these proceedings, and, for this court to take what ever
other actions, that it deems just and fair.
fully Submitted by,
CERTI?ICATS OF SERVICE
I hereby certify, that a copy of the foregoing has been
mailed, postage pre-paid, on this of June, 1993, tos
CONTINUZD ON 35
(4) ve “na a ee ee ote
\
ponald L. Jerge. i, Pentower Office Buildim 3100 3roadway,
Suite 609, Kansas City, Missouri-6411l- attorney for the respon-
dent,
)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RANDY G. SPENCER,
Petitioner,
s+
vs. No. 93-0299-CV-W-3-P (Teena t
MIKE KEMNA,
Respondent.
ORDER
Upon motion of respondent, and for good cause shown, it is
ORDERED that respondent is granted an enlargement of time up to and
including July 7, 1993, in which to file a response to the
petitioner's petition as directed by this Court's order to show
cause. |
IT IS SO ORDERED.
° NTER
UNIT STATES DISTR JUDGE
Kansas City, Missouri,
nates: G@ = FO = G 3
37
Document #2
ORIGINAL
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RANDY SPENCER,
Petitioner,
vs. No. 93-0299-CV-W-3-
MIKE KEMNA,
ee ee ee ee ee ee ee ee ee
Respondent.
HABEAS CORPUS SHOULD NOT BE GRANTED
COMES NOW respondent, by and through counsel, and states as
follows in response to this Court's order to show cause why a writ
of habeas corpus should not be granted.
STATEMENT OF CUSTODY AND PARTIES
Named petitioner, Randy Spencer, is presently incarcerated at
the Western Missouri Correctional Center located in Cameron,
Missouri, pursuant to the judgment and sentence of the Circuit
Court of Jackson County, Missouri. Petitioner was convicted, after
a plea of guilty, of burglary in the second degree and stealing
over $150. Petitioner received concurrent terms of three years
imprisonment upon his convictions. Petitioner has yet to complete
serving his present terms of imprisonment.'
Western Missouri
Mike Kemna, Superintendent of the
‘Records from the Missouri Division of Probation and Parole
indicate that petitioner has been scheduled for parole release on
August 7, 1993. This presumptive release date is, of course, based
upon continued acceptable behavior in the Missouri Department of
Corrections until that time. The exhibits also indicate that
petitioner will complete the service of his entire term of
imprisonment on October 16, 1993 (Resp.Exh.A, p. 1).
38
Document #——/2—
Correctional Center, is petitioner's custodian and is a proper
party respondent. 28 U.S.C. §2254, Rule 2(a).
STATEMENT OF EXHIBITS
1. Attached hereto are true and correct copies of documents
relating to petitioner's parole and subsequent parole revocation
regarding his Jackson County charges; said documents are
incorporated by reference herein, and identified as Respondent's
Exhibit A.
STATEMENT OF ISSUES AND EXHAUSTION
In the present petition, petitioner has presented what he
characterizes as four allegations for .wview by this Court.
Paraphrased from petitioner's petition and this Court's order of
May 3, 1993, those four allegations are as follows:
(1) That petitioner was denied the right to a
preliminary hearing concerning his parole
violation;
(2) That petitioner's conditional release date was
suspended without a hearing;
(3) That petitioner's parole revocation hearing
was constitutionally flawed and did not
comport with the principles of due process;
and
(4) That petitioner was denied the opportunity to
review the evidence relied on in revoking his
parole.
(Pet. at pp. 6-7).
Examination of the petition together with the above-listed
exhibits indicates that petitioner, for the purpose of 28 U.S.C.
Section 2254, has exhausted his claims because he has either fairly
presented the claims to the Missouri state courts or because he is
39
respondent be allowed an opportunity to discuss the exhaustion or
non-exhaustion of those claims.
STATEMENT AS TO MERITS
Zs
In his first allegation, petitioner asserts that he was denied
his right to a preliminary hearing at the time he was notified of
his parole violations (Pet. at p. 6). Petitioner asserts that at
the time he was arrested as a parole violator he was informed of
two counts forming the basis of the violation warrant (Pet. at p.
6). Petitioner admits that with respect to at least two of the
bases for the arrest warrant, he waived a preliminary hearing (Pet.
at p. 6). It is only with a third basis for the arrest that
petitioner now takes exception. Petitioner asserts that he had not
waived a preliminary hearing with respect to the third cause for
arrest.
To be sure, the United States Supreme Court has noted the
importance of a preliminary hearing at the time of arrest with
respect to parole violators. Morrissey v. Brewer, 408 U.S. 471,
484-487, 92 S.Ct. 2593, 2602-2603, 33 L.Ed.2d 484 (1972). In
Morrissey, the Supreme Court noted that "due process would seem to
require that some minimal inquiry be conducted at or reasonably
near the place of the alleged parole violation or arrest and as
promptly as convenient after arrest while information is fresh and
sources are available." JId., at 485, 92 S.Ct. at 2602. With
respect to the preliminary hearing, the Court stated the purpose as
determining “whether there is probable cause or reasonable ground
40
to believe that the arrested parolee has committed acts that would
constitute a violation of parole conditions." Id.
Here, petitioner's own statement in the petition before this
Court would be sufficient to indicate that the purpose of the
preliminary hearing was satisfied through acts of petitioner
himself. Petitioner's admission as to two bases for the arrest
certainly constitutes probable cause for a more detailed parole
revocation proceeding. Accordingly, even if petitioner disagreed
with the third and final foundation for his arrest, probable cause
still existed through acts admitted to by petitioner. On this
basis, pe...ioner's Ground I should be denied.
Additionally, the record developed during petitioner's parole
revocation process indicates that petitioner waived a preliminary
hearing (Resp.Exh.A, pp. 9, 17). Petitioner has offered no
specific evidence to demonstrate that the preliminary hearing was
not waived at the time of the arrest and preparation of the
original violation report. As petitioner bears the burden of proof
in a federal habeas corpus action, his claim under Ground I must be
denied.
ii.
Next, as his second allegaiton, petitioner asserts that he has
somehow been deprived of a constitutional protection because his
conditional release date was taken from him without a hearing (Pet.
at p. 6). In the supporting facts relating to this ground,
petitioner asserts that he had origi lly received a conditional
release date of October 16, 1992 (Pet. at p. 6). Petitioner then
4i
asserts that Missouri law requires a hearing prior to the extension
of a conditional release date (Pet. at p. 6). Petitioner's
allegation should be denied for the reasons in petitioner's
petition itself.
The issue presented by petitioner in Ground II is only an
issue of state law best left for determination by the state courts.
Estelle vy. McGuire, _—s&»wU.S. __, 112 &.Ct. 475, 116 L.Ed.2d 385
(1991).
In this case, petitioner received a maximum sentence date of
October 16, 1993 (Resp.Exh.A, pp. 1, 4, 6, 9, 11). Petitioner's
maximum sentence date ..: remained unaffected by his parole
violation (Resp.Exh.A, pp. 4, 6). As there is no constitutional
right to conditional release and as petitioner has not had his
maximum sentence date extended based upon his parole violation,
there is no basis for Ground II. This ground should be denied.
ZII-IV.
As his remaining two allegations, petitioner argues that he
has been deprived of various rights -- including the right to due
process -- during his parole revocation hearing before the Missouri
Board of Probation and Parole (Pet. at p. 7). Again, much like
petitioner's Ground I, the assertions presented to this Court in
Grounds III and IV find their constitutional foundation in the
Supreme Court case of Morrissey v. Brewer, supra. In Morrissey,
the United States Supreme Court determined that, under the
Fourteenth Amendment, a parole violator must be given an
opportunity for a revocation hearing prior to the final decision of
42
}
/
that petitioner's parole should be revoked based upon violation of
three conditions of parole, conditions number 1, number 6 and
number 7 (Resp.Exh.A, p. 6). Remembering that petitioner admitted
v
the use of crack cocained the night of the alleged parole
violation, and coupling that with the fact petitioner acknowledged
sexual intercourse with the purported victim of the rape, there was
no need for the Missouri Board of Probation and Parole to present
live witnesses at the revocation hearing. Accordingly, there were
no adverse witnesses for petitioner to confront or cross-examine.
A sufficient basis existed for the revocation of petitioner's
parole and as petitioner has not been denied due process, ...2re is
no merit to his contentions in Ground III or IV.
Additionally, in Ground IV, petitioner seems to argue that the
Missouri Board of Probation and Parole did not provide answer as to
the revoce*ion until approximately four months after the hearing in
September of 1992. As demonstrated by the order of revocation
(Resp.Exh.A, p. 6), petitioner's parole was ordered revoked on
September 24, 1992, the date of the revocation hearing, and only a
period of approximately two months after petitioner was origionally
arrested on the parole violation warrant (see Resp.Exh.A, pp. 17-
19). The total time of approximately two months is not
unreasonable. Morrissey v. Brewer, 408 U.S. at 488, 92 S.Ct. at
2604.
43
CONCLUSION
WHEREFORE, for the reasons herein stated, respondent prays
that this Court dismiss this petition without further judicial
proceedings.
Respectfully submitted,
JEREMIAH W. “JAY" NIXON
Missouri Bar No. 35431
Penntower Office Center
3100 Broadway, Suite 609
Kaneas City, MO 64111
(816) 889-5000
(816) 889-5006 FAX
Attorneys for Respondent.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
”
was mailed, postage prepaid, this + - day of July, 1993, to:
Randy G. Spencer
Reg. No. 176948
Western Missouri Correctional Center
Route 5, P.O. Box 1-E
Cameron, MO 64429
44
DEPARTMENT-OF CORRECTION’
JOARD OF PROBATION AND PA}
INVESTIGATION REQUEST
TYPE OF RELEASE: ADMINISTRATIVE
ee
To: District 4 : Type of Investigation INTERSTATE COMPACT ONLY
, We desire to transfer this
: Inter-District
: X_ Supplemental : person to you state
Date: 06/07/93 Interstate :
Executive Clemency As a resident
Personnel Family resides your state
Partial PSI
Violation Report
Date due: 06/24/93 He/She has employment
With your consent
Supplemental Information Requested:
Complete PSI Circumstances of Offense XXX Home
Court Record Other Charges Pending XXX Employment
Prior Record Social History Other
Name Number DOB Race/Sex
SPENCER, Randy PR 176948 03/31/56 W/M
Plea/Crime: PG: Burglary 2nd Degree, PG: Stealing Over $150
Date Sentenced: 11/08/90 11/08/90 00/00/00
Judge/County: JACK JACK
Length of Sentence Presumptive Release Date ~~ upervision/Expiration Date
3 years (3, 3 cc) \ 08/07/9
ee P
Home: City Union Mission 1108 E. 10th Stre Sas City, MO
(816)474-9380
Empioyment: To be obtained ,
“SmMENts Your vedDiv to investigation recuest must be E-Mailed to the
ites LNGIattisonal parole office with 2 copy to Central Office. The
Vor Ove 1@ DlaAl aGdvess and Presvmptive Release Date shouid be intluded -n
Subject has the ADMINISTRATIVE release date of 08/07/93.
Special Conditions: No drinking, drug program
K¥ista Thompson: (WMO7)WMCCP#Q9?
Western Missouri Correctional Center ;
Cameron, MO . -
(816)632-1390
aa
INVESTIGATION REQUEST
USDCWDMoWD
93-0299-CV-W-3-P
Spencer v. Kemna
Resp.Exh. A
ce: co -
MBPP-200 (4-92)
Missouri Department of Corrections
Board of Probation & Parole
CHRONOLOGICAL DATA SHEET
NAME: SPENCER, Randy INST. NO.: 176948-wW Page 1
SSN: 8-62-6752
Date Dictated: 2-2-93 Date Typed: 02-03-93
PRE-RELEASE REPORT
Randy Spencer has been approved by WMCC for his time credit release date of
8-7-93. Randy Spencer's conduct violations are on the attached time credit
eligibility form. He has also received the following conduct violaticn in
addition:
Date Offense Disposition
1-4-93 Disobeying an Order 10 days room restriction,
8 hours extra duty -_
DETAINERS: None
HALFWAY HOUSE: N/A
HOME : City Union Mission
1108 E. 10th Street
Kansas City, MO K oss
, hg
816-474-9380
Previous-no drinking and drug program
EMPLOYMENT : To be obtained
SPECIAL CONDITIONS:
MEDICAL: None
HOUSE ARREST:
1 Eligible
2 Not Eligible-Time is too short to Subject's maximum
release date of 10-16-93
.. Eligible, Not Recommended
RECOMMENDATION:
It is recommended that Spencer be administratively paroled on 8-7-93 with
special nditions of no drinking and a drug program.
Baker/ds (WMCC) E-Mailed
46
ry ee J )
phe?
\WSTATE OF MISSOURI : STATE OF MISSOURI ~
> DEPARTMENT Of CORRECTIONS D INSTITUTION DEPARTMENT OF CORRECTIONS REVOCATION
TIME CREDIT ELIGIBILITY % | wMecc BOARD OF PROBATION AND PAROLE —— - SS
BOARD ACTION SHEET A7Y5 5S
The inmate listed on this form is hereby certified to the Board of Probation & Parole for consideration for waa
Administrative Parole. This certification for release is based upon the inmates conduct and program participation SPENCER, Randy — 176948
as reflected in the individuals summary. oate x
9-24-92 O witial 0 RECONSIDERATION DC INTERIM © PRE-RELEASE
INMATE NAME MINIMUM ELIGIBILITY GUIDELINE DATE SALIENT FACTOR SCORE
SPENCER, Randy GUIDELINE RANGE TO
eee
REGISTER NUMBER CREDIT RELEASE DATE FELONY CLASS aie 5 i Pere ans ARY AS A MATTER OF PER iy REGORE YO ¥E
176948 |__ 08-07-93 c EXECUTED AS DIRECTED BY THE FOLLOWING ORDER AND DECISION. —
CONDUCT VIOLATIONS A . DECISION AND REMARKS
(Attach additional sheets as needed) 0 REFER TO FULL BOARD
HIGH RISK
RULE VIOLATION | 0 7 6.42
NO RULE TITLE DATE DISPOSITION — K2 oe
RELEASE AW VR
20 Disobeyi Order 01-04-93 10 day rm/cell restrict.
— 8 hrs. extra duty D PAROLE (
O) CONDITIONAL RELEASE : :
24 ‘| Contraband 12-01-92 Prop. Imp/Confisc. 0) MAXIMUM RELEASE SSGISION AND REMARKS
8 hrs. extra duty (Leka -frbn 10-469
DECISION Cmebtion 1-6-7 | 2 ow
© GUIDELINE -4 Q ‘
DO ABOVE GUIDE Vaot.
om Hae,
DO BELOW GUIDELINE —
DECISION AND REMARKS
SPECIAL CONDITIONS er
== +
PROGRAM PARTICIPATION 7 epee y-
-| 1 DRUG PROGRAM ¥ a
CD HALFWAY HOUSE y ah YW
Return Parole Violator 8/25/92. y
CD HOUSE ARREST pit
0 DETAINER DECISION AND REMARKS
© wena ven noon Sa eee
VIOLATION
RETURNED 8-25-92 __ | DECISION AND REMARKS
47 MAX. DATE 10-16- Qa R RE
NEW MAX. DATE line remains
| | e sane
| RECOMMEND | aBsconper bY ae ee ee
5 0 SENTENCE OUTSIDE DAI 48
SUPERINTENDENT ‘TURE Tru I= ' ’ ee See ee Cee kr a
a | Sere ir
SS a — —
, STATE OF MISSOURI
Missouri Sy 1, DEPARTMENT OF CORRECTIONS
BOARD OF PROBATION ANL PAROLE
DEPARTMENT OF CORRECTIONS Dick D. Moore, Director WAIVER OF REVOCATION HEARING OR REQUEST FOR REVOCATION HEARING .
Board of Probation and Parole __|SIGN AND DATE ONLY ONE OF THE FOLLOWING STATEMENTS:
|. WAIVER OF REVOCATION HEARING
Cranston J. Mitchell
Chairman & Compact
Administrator
Ben W. Russell , i I, ' have been '
Victoria C. Myers (NAME) (NUMBER) ;
Betty J. Oey returned to the Missouri Division of Adult Institutions for alleged violation of
Anthony G. Spillers |
Seared Members Q ~| Y~99. supervision. | am aware of my rights to a hearing, as stated in Section 217.720.
Paul D. Herman
Crief State Supervisor Rear Sis: Qn, ‘ \ Ole. TWA 4
Patricia A. Parker
Secretary & Deputy This is to advis®that you have been set for a “The Board shall either order him discharged from such institution or other
Compact Administrator Revocation Hearing before the Missouri Board of , detaini..; custody or shall cause the inmate to be brought before it for a
Pree itoxe = 2A , hearing on the violation charged, under such rules and regulations as the
- an ‘ : : :
the Parole Hearing Room at thé Fulton Reception and Board may adopt. If the violation is established and found, the Board may
Diagnostic Center. continue or revoke the parole or conditional release, or enter such other
order as it may see fit. If no violation is established and found, then the
It is your responsibility to notify anyone whom you nes , *
4 " y Mg 4 parole or conditional release shall continue.
wish to appear in your behalf at the hearing on that
date.
Sincerely, | Having been fully informed, and having full knowledge of these rights in the
MISSOURI BOARD OF PROBATION AND PAROLE ' aforementioned section, | DO HEREBY WAIVE MY RIGHTS TO A REVOCATION
! | HEARING BY THE BOARD OF PROBATION AND PAROLE.
Chie.
éggy eClu
Institutional Parole Officer — — —
PLM/slr
of this letter. ll, REQUEST FOR REVOCATION HEARING
**7T have r
Subj Z)
pate G -/ , a , on ' = HEREBY
REQUEST A REVOCATION HEARING before the Board of Probation and Parole,
as provided for in the Statute as cited in Item |, above. 52
NUMBER DATE
* «AN EQUAL OPPORTUNITY EMPLOYER «
Services provided on @ Non-discriminatory besis 51
X Parole
Conditional Release
Name: SPENCER, Randy No.: 176948 Date: 9-14-92
DATE INTERVIEWED: 9-14-92 sae
Preliminary Hearing: x Waived Held N/A
Client provided with appropriate documents: x Yes No
MBPP-247 - Request for Attorney: offered % Not offered
Offense: PG: Burglary 2nd Degree;
Stealing Over $150.00
Sentence: 3 years (3,3 cc)
County: Jackson
Date Committed to DAI: 11-14-90
Date Paroled or Conditionally Released: 4-16-92
Order for Arrest and Return: 8-13-92
Date Taken Into Custody: 7-16-92
Date Returned to DAI: 8-25-92
Maximum Release Date: 10-16-93
TYPE OF VIOLATION OFFICER RECOMMENDATION
x (1) New Offense (1) Reinstate
(2) Absconder 4 (2) Revocation
x (3) Technical
I. CONDITIONS AND CIRCUMSTANCES
#1-LAWS: by being arrested on 7-16-92 for Rape.
#6-DRUGS: by having in his possession and using a controlled
Substance, to wit: Cocaine.
#7-WEAPONS: by having in his possession or using as a dangerous
weapon, to wit: screw driver.
Regarding the circumstances pertaining to the above alleged
violated conditions, the following information was taken from
the Initial Violation Report submitted 7-27-92 completed by
District #4 Officer Jonathan Tintinger.
Pertaining to Condition #1-LAWS and #7-WEAPONS: According to
the Initial Violation Report submitted, Spencer was arrested on a
20 hour hold on the charge of Rape by the Kansas City Police
Department on 7-16-92. According to the offense reports
obtained, Spencer was introduced to the victim, Gina Bartlett,
in a Kansas City area crack house, located in Kansas City, MO. 53
After smoking Crack Cocaine, the victim was asked by Spencer for
MBPP-162 VIOLATION REPORT Q | MBPP-162
STATE OF MISSOURI
DEPARTMENT OF CORRECTIONS
BOARD OF PROBATION AND PAROLE
REVOCATION REPORT
WAME :
_male occupants and escaped.
EPI REPORT
SPENCER Rendy Wo.: 176948 Date: 4-14-9e Pane .
a ride home 4t approximately 6:00 p.m. The victim then gave
Spencer a ride home and agreed to come upstairs, subsequent to
his offer to give her gas money. After entering Spencer's
apartment, Spencer and the victim smoked more Crack Cocaine,
after which the victim attempted to leave the apartment.
Spencer then allegedly jumped in front of her, and pushed her to
the floor. The victim stated that Spencer got on top of her and
started striking her in the face with his fist advising her to
shut up. Allegedly, Spencer continued to punch her in the face
until she begged him to stop and removed her clothes. Spencer
then had sexual intercourse with the victim, removing his penis
in time to ejaculate on the victim. Spencer then got dressec
and told the victim to get Ccressed and directec her to drive him
back to the drug house in order to purchase more Cocaine. Upon
arrival at the drug house, the victim exited the vehicle and
informed persons at the drug house that she had just been raped
by Spencer. Spencer was chased away from the house by 2 of the
The victim wis taken to the
Independence Regional Hospital and received treatment for the
Rape. The attending physician's report at the hospital
indicated that the victim was visibility upset, crying at times,
and evidenced "bruises on the left side of mouth with moderate
swelling, abrasion of inner-upper left lip, tender but not
discolored on the right angular jaw." On 6-23-92 the victim
identified Spencer as the rapist from a 6 picture color photo
spread. Spencer gave a statement to the police officers that
the victim's purse was on top of his refrigerator and he
attempted to try to get the dope and pushed her away .... she
fell and landed on his bed. When questioned whether or not he
had hat the victim in the head with his hands, Spencer replied
that he had not done it intentionally, or with his knowledge,
however, it may have happened when he pushed her away from the
purse. Spencer claimed to the detectives that the 2 had engaged
in consensual intercourse. The victim reported that Spencer had
a screw driver which he pressed against her side at some point
during the alleged rape, but she was not clear at what point
that happened. A warrant had not been issued to date of the
violation report on this new offense.
Pertaining to Condition #6-DRUGS: As noted in the Initial
Violation Report, Spencer allegedly met the victim at a drug
house and they both smoked Crack Cocaine.
Regarding Condition #1-LAW and #7-WEAPONS:
violating these conditions of parole.
Spencer denies
Regarding Condition #6-DRUGS, Spencer admitted to this officer
that he had in fact used Cocaine and advised this officer “so
whet". During the violation interview with this officer,
Spencer portrayed a negative attitude and was somewhat verbally
aggressive. He intends to have no witnesses at his hearing.
04
VIOLATION REPORT
} bee 7 ! if evbetcied De . J Ted
il oad tint T ThS They foes, :
REVOCATION KEFORT | f fo, E vy Paty '
t fil thi rt
; : S : 3276948 9-14-92 z Pe am - nile elles il a 4 s
NAME: SPENCER, Randy No.: »94 Dete:9-14-92 Page 3 : COISYER Mi: Loyvae COMMIT TEHT Gent? SrENCER ReMUY 6
2.16 0s MOCUALAZERS TRUE SME: SPENCER Kany G6
Ti. OTHER VIOLATIONS ME AGG LDS PED AGE AY CUdME TMNT! 34
ite POL 7 VEGEMS
None ee :
III RECOMMENDATION « * 4L345 MAMES 5 OM
Pie at iF CLEMIN ! SWWVHEAS rae Ab
' “Eat Gh, TeAteLr'e t SPENCES Ohany (
Spencer appears before the Board on his first violation after Be stecipan oaiaars . Miia) pm —
being arrested for Suspicion of Rape. It does not appear that a he or °
warrant was ever issued for this offense. Spencer does admit to eg eae + ere ETET: Et ece> tt NNMTNATO 7 VheMg ir ee be 1 ©. cae¥
, Mire Weeein. VS BL LES BIRT: FLatLes SLODMINGTON |. om BUM... £3 NG AIL Siege’
using Crack Cocaine, however, denies violating Conditions #1 and : ETG4T! & FT. kL OK WETCMT: 175 CK: ALE “ACEL WHLIE
#7. Based upon the information presented in the violation “UT: ! SYOcky Pa rere ot UypsTHE/ cvees GREEN COMPLE vane Farr
report, there does appear to be significant evidence that hg tae leer Fe plore , Pee
— " 4 z °
m epape Preteens pln Moret ge ER Fg « SCPRS Mafia TATTOOS » «
B25 GEESCSE WOUSE FOSPSS Y TAT Ro afit BESCRIPTION-i! BOWLING BALL ¢2
Spencer's parole supervision be revoked and he be scheduled for rANTY ON ROSE
{ 4
Feat AR tit a
T te OM 2: TIGER
“4 ‘*
ve
me
de
a hearing at a time deemed appropriate by the Board. Further
: 33 te
parole consideration will be necessary in this case. at ThT a tm\e MOM. DAT. FLOWER
38 Tet KR whe TAMMY, STAR
MAXIMUM RELEASE DATE: 10-16-93 a , :
VELIGIOUS REFERENCES BAPTIST MARTTAL STATUS! MEVER MARRIED
Respectfully submitted,
x * EMERGENCY wleESS rv
f OW Wyre HAME? EMGIED i ROBE. hELATIONSHIP? STEY-FATHER
Colts.‘ worl less MVERTOCLTS SSTATC/ZIP? &4ei TESA Lista 1h WARREMSBURG M0 4409%
TELEPHONE huibiic: Gi6-a2v-1471
Institutional Parole Officer a ail -
Fulton Reception and Diagnostic Center on) MaLeon JULY RELATIONSHIP? SISTER
STREET IEAVY /GTATESZIPS TOR DITTMAR KeBAs CITY MO 44127
i S$ yo engrey ? 7 coe ee cae Sh oe, POOF MG se 8 Be!
is.L&i bathe": he ee oa Guedst , 2 oe
PLM/slr
* *® MILITARY SERVICE ® &
WeNCt HLMWER GheVED TYPE OF DISoMest oe? -HISCHARGE DATES OO © CCeKd
» * PRVLOR KECORDT #
Be iO 7 oO) O22 PARULE 4 MS O43 IMPKISONMENT + MOS OF ESCAPE MO: OO
OTHER: GG GOTMERKS Of OTHERS OO GTHER? OO
“RIOF REGISTER NUMEERS?
LS76E27 O489909 OF2235
“ » * OCC’ ATION OR TRADE « %
NCCUPAT IONS ¢ LABORER «GENERAL»
#* * SENTENCE SUMMARY © #
RECEIVED DATES 11°14 1990 RETURNED ROMS CREDIT TIME RELEASE LATE: 08 25 199:
MUMBER OF SENTENCES: 2 MAXIMUM AGGREGATE RELEASE DATE! 10 16 1992
TOTAL SENTENCES LENGTH: 3 TIME CREDIT RELEASE DATE:
» * COMMENTS * *
° 3 YRS (3.3CC)
> PAROLED: 4-14-92; RET PYV3 &G-25-92.
20 | 56
MBPP-162 VIOLATION REPORT oC,
patok:. ' vit mMiny
t ww Ty it »
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O02 22 1992 KON-
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GLNT STATS eCilve bisc
- ’ -
THKOITIOD: NOTTS
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CRESS TESS
‘i 6
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LATTES
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- _ r
IN THE CIKCUIT COURT OF JACKSON COUNTY, MISSOURI Ny Sy
STATE OF MISSOURI 4°76948 | 4 Bop
PLAINTIFF ; NO CRI0-4834
eo
i _ ae tell tee
WOV 1 4 1990
RECORNS OFnice
Fullon TORRENDANTDiscnostic Center
DIVISION
|e? “iE
JUDGMENT
(GUILTY PLEA~- NO PROBATION)
On___November 8 19 90 __ came the attorney forthe State. ss Robert Adams _
and defendant appeared in person and by attorney, Kent Hal) .
Kt is adjudged that defendant, having been found guilty upon a plea of guilty entered on _._Novemher §
offense(s) of ____ Count 1 - Burglary 2°
Count 2 - Stealing over $150.00
19 890 of the
- -4>
i)- lig te
10-73
Nis ordered and adjudged thal defendant is sentenced and commitied to the custody of the Division of Adult institutions/Jegheensave
a class C
lelony/Aus sane aK is guilty of said offense(s).
Bepaninert2ok Gare ainretor imprisonment for a period of
; A . mA
it is ordered that the Court Administrator deliver a certified copy of this judgment and commitment to the Jackson County Department of Corrections
Acknowledgment read by the Court and signed by the defendant
and that the copy serve as the commitment of defendant.
It is ordered and adjudged that the State of Missouri have and recover trom delendant the sum of $4.9q/B/Ine Crime Victims’ Compensation Fund,
and that execution issue therefor.
ht is ordered and adjudged, pursuant to Chapter 600 R.S.Mo., that the State of Missouri have and recover trom defendant the sum o!
$50.00 ——. !0r services of the Public Defender, and thai execution issue therefor.
Novembe 4 . = Ke v Crime Victins' ——
os Ht. o ae aed 4 Ls | fl )
CORCT 1380-114 | LOM Oey dk 98
SIATE OF SNISSOURi 40S East i3th Street
HEPARTMENT OF CORRECTIONS Sth Floor
=OARD OF PROBATICN AND PAROLE Ransss City, MO $4106
(816)6869-2271
VIOLATION REPORT
ee ee ee ee ee
Nane SPENCER, Ranc G Ne IN176%46-F Date 74/27/92
TYFE OF CASE TYPE OF REPORT
Board : Initial
Crime: PG: Stealing O7£150; Burglary il Sentence: 3 years (3.3 ¢c¢)
Date Supv. Began: 04/16/32 Expires: 10/16/92
TYPE OF VIOLATION:
Felony (1)
OFFICER'S RECOMMENDATION:
Continuence (1)
VIOLATION INTERVIEW:
Date: 7417792 Time: 4:20 p.a. Place: Jackson County Jail
1300 Cnerry, KCMO 64106
“Tne Jackson County Des..1 cnt of X% Client Advised that Any Statements May be Included in Violation Report
™% Client Given Booklet “Rights of Alleged Violator™
v
5 |
Waived Preliminary Hearing Requested Preliminary Hearing
;
.
corrections hereby endorse upon this x
commitment that this person N CUSTODY? xX Yes Date: 7/17/92 Locetion: Jackson County Jail
spent 24 days in jail. ‘22 ie eee Re er oe eh eS
|
|
tte Vento Violation of Parole Condition #1, by allegedly committing the cffense
Criminal Recotds Unit cf Rape.
Violation of Parole Condition #6, by the use of Cocaine.
=--20 eumme — S
l@~11~Gp hu |-1¢~GO r Violation of Parole Condition #7, by use of a dangerous weapon.
Il. Particulers of Violation
Spencer was arrested on @ twenty-hour hold on @ charge of Rape by
Officers of the Kansas City, Missouri Police Department on 7/16/92,
at an unknown time and unknown place, and subsequentiy held on the
authority of a warrant issued by this officer dated 7/17/92.
Circumstances of the violation of Condition #1 are as follows:
Accordizg to KCMO Police Department Report #92-077642, on 6/3/92,
Spencer was introduced to the victim, Gina Bartlett, in a Kansas City
Area Crack House, located near 24th and Park Streets, KCMO. After
smoking crack, the victim was asked by Spencer fer a ride home at
59 approximately 6:00 p.m. The victim then gave Spencer a ride home and
agreed to come upstairs, subsequent to his offer to give her gas
money. After entering Spencer's apartment, Spencer and the victis
, PRUE COPY - ATTEST uty. mo ; smoked more crack, after which the victim attempted to leave the | §
CIRCUIT COURT OF as OFFICE apartment. Spencer then allegedly jumped in front of her and pushed
COURT ADMINISTRA RECORDS her to the floor. The victim stated that he got on top of her and
DEPARTM CRI started striking her in the face with his fists and told her to shut
OLA! 0 , oes \e up. Allegedly, Spencer continued to punch her face until she begged _
BY him to stop and removed her clothes. Spencer then enjoyed sexual lay
IFFEESE CYCLE W.. intercourse with the victim prior to his removing his penis in tigre (A/ ;
Iii.
VIOLATICN REPORT
IN1L7694E-r
Rgnay &. We
to ejaculete on the victin. Spencer then got dressed and told the
victim to get dressed, after which he directed the victia to drive
“Nim back to the drug house in corder to purchseste more Cocaine. Upon
arrival at the Grus nouse, the victim exited the vehicle. The victin
informed the persons 3t the ¢crug house that she had just been raped
by Spencer. Next, Spencer was chased away from the house by two of
the male occupants and escapes. The victim entered the drug house,
telephoned her parents, end was picked up 3t the house by her father
anc brother, prior to receiving trestment for the rape sat .
Independence Reeionsl Hospitel. The attending physician's report at
Independence Regions. Hospital indicated that the victim was v:sibly
upset, crying at times, and evidenced “bruises on the left side of
mouth with moderate swelling, abrasion of inner-upper left lip,
tencer but not discolored on right angular jaw." Members of the KCPD
were dispatched on the reported rape by hospital personnel. On
6/18/92, officers of the KCMO Police Department Sex Crimes Unit
respondec to an anonymous tip that the name of the rapist was Randy
Spencer. An ALERT Systems check of Randy Spencer by police
gGetecti. provided additional descriptive information as well as a
mug shot cf Spencer obtained from the Police Records Bureau. On
6/23/92, the victim-identified Spencer as the rapist from «4
six-picture color photospread. After being detained for questioning
regarding this offense on 7/16/92, Spencer told investigating
detectives that “her purse was on top of my refrigerator, and I
attempted to try to get to the dope and pushed her away...... she fel:
snd lended on my bed." When asked by detectives whether or not he
hec hit the victim in the head with his hands, Spencer replied, "not
intentionally, not with sy knowledge, it may have happened when I
pushed her away from the purse.” However, Spencer claimed to
imvestigating detectives that the two had engaged in consensuel
cexuel intercourse.
This csse was turned over on 7/17/92 from the KCMO Police Department
Sex Crimes Ynit to the Jackson County Prosecuting Attorney's Office.
As of the dste of this writing, no State charges have been formally
filed.
In response to the above violation, Spencer had no response.
Circumstances of the violation of Condition #6 are as follows:
According to the KCMO Police Department Report #92-077642, Spencer
admitted to smoking Crack Cocaine, on 6/3/92.
In response to the above violation, Spencer admitted the violation.
Circumstances of the violation of Condition #7? are as follows:
According to the above-mentioned KCPD Report #92-077642, the victin
stated that Spencer had a screwdriver which he, “pressed” against her
side, at some point during the alleged rape, but that she wasn't
clear at what point that happened.
In response to the above violation, Spencer denied the violation. 61
Other Violations
None. %
Mane: SPFiCER, Randy No.:
Page 3
saae°0~C*~C et 74/27/92
Date:
IV. Recommendation
This officer's recommendation is for Continuance and placement in
Farmington Treatment Center/Mineral Area Treatment Ceater. Spencer
has admitted to smoking Crack Cocaine within two weeks of being
released from Fellowship House, on 5/21/92. Spencer received a
violation report from Fellowship House staff, relative to using
Cocaine on or about 4/2/92. Spencer has admitted before to the use
of “anything I can get my hands on," relative to drugs. Yet, of
greater concern to the undersigned officer than Spencer's cavalier ~
attitude regarding drug use while on parole, is the fact that Spencer
admitted to investigating detectives that he pushed the victiw until
she fell yet can't clearly recall whether he “intentionally”
assaulted her, aithough “it may hseve happened.” This officer
contends that Spencer, regardless cf the disposition of this new
case, is obviously a violent and impulsive individual who represents
a clear canger to the community. This officer contends that Spencer
has every intention of continuing to use drugs whenever possible,
despite what help is offered hin. Randy Spencer is a registered sex
offeficer, having bé@cn Ga-ea @ five-year prison sentence for Socoay in
1983. However, an ultimate recommendation based on the alleged
violations of Conditions #1 and #7 is being held in sbeyance pending
disposition of this new rape charge, by the Jackson County
Prosecuting Attorney's Office. In the event formal charges are
ultimately filed, a separate recommendation wiil be forthcoming.
Meanwhile, in view of the alleged rape, it is deemed necessary to
immediately remove Spencer from the comaunity. The Prosecuting
Attorney's Office has advised it will be a month or so before the
cas¢ is reviewed for possible filing of charges. No objection was
posed to returning Spencer as a parole violator in the interin.
v. Availabilsty
Spencer is currently in the custody of the Jackson County Jail, 1300
Cherry, Kansas City, Missouri 64106, and is imaediately available to
the Board.
Peepectfully submitted,
Mouton
Unit Supervisor
Jonathan L. Tantinger/04-07
State Probation & Parole Urtficer
Kansas City, MO
Cistrict #4 Dete:
JLT/bdar 08/06/92
SIGNATURE ON FILE
“AIVER CN FILE
MUPS- 3&5 VIOLATIul FESS
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RANDY G. SPENCER,
Petitioner,
No. 93-0299-CV-W-3-P
vs.
MIKE KEMNA,
ee ee ee ee ee ee ee ee ee
Respondent.
ORDER
Upon motion of respondent, and for good cause shown, it is
ORDERED that respondent is granted 2n enlargement of time up to and
including July 7, .1993, in which to file a response to the
petitioner's petition as directed by this Court's order to show
cause.
IT IS SO ORDERED.
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated: 7-73 - + a
marly.
NAY
ww bt Lk Of
ie ~boelitice Pade oy
IN THE uNITED STATES DISTRICT COURT . OR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RANDY G. SPENCER,
Petitioner,
vs. Case No. 93-0299-CV-
MIKE KEMNA,
Respondent.
PZTITIONER'S MOTION AND REQUEST FOR
N TI THIS
Comes now, the petitioner, Randy G. Spencer, pro-se, and
moves this court to make a final adjucation of this matter and
in support of this request, this petitioner will state as fol-
lows:
1. That this petitioner is moving this court for a final ad-
judication of this matter, because this petitioner has been
granted “good time” and this petitioner may be released from con-
finement, on August 7, 1993, and if a final disposition of this
matter is not reached by August 7, 1993, then this petitioner will
suffer irreparable harm, by being denied the rights and benifits
which are secured to this petitioner by the United States Con-
stitutidn, through the use of the ‘rit of Habeas Corpus, resul-
ting in this petitioner being illegally confined and restrained
from his liberty,for (13) months of this petitioners life, with-
out due process of the law,and leaving this petitioner with no way
tv vindicate himself, during this time.
2. That if this petitioner is released from confinement on
August 7, 1993 and if this matter is not adjucated by then, then
all of this petitioners time, money, and efforts, will have been
for nothing, as this court knows that when this petitioner is re-
leased, and if the issues of thie petitioners petition for Writ
of Habeas Corpus are not resolved by then, then this petitioners
petition and the issues thereof, become moot, as no relief can be
granted to this petitioner, by way of the Writ, if this petit-
ioner is no longer in confinement.
64
£2) Nocwment #19,
3. That this etitioner realizes that su a request is
highly unusual, but under these eircumstances, not entirely un-
reasonable, esspicailly in light of the facts that when this
petitioner was arrested and detained for alleged parole violation,
this petitioner had (14) months left to serve on this petitioners
sentence, and with it taking over two (2) months for this petit-
ioner to even see the parole board, for revocation, amother (6)
six months exhausting State Judicial Remedies, (2) two months
getting a show cause order issued in this case, and (2) two more
months spent on the respondent requesting extensions of time,
@ll of which has caused this petitioner to virtually serve out
the remainder of his sentence, and leaving this petitioner un-
able to regain his freedom, by the use of the Writ.
4. That this court has the jurisdicition to invoke a final
adjucation and judgement in this matter, through the Federal
Rules of Civil Procedure, and pursuant to, in accordence with, but
not limited to, Titles 28 U.S.C. 82241 et seq. (1993), 81331 Fed-
eral Question, & 82201-2202 Declatory Judgement, or any other
remedy that this court may hawat its disposial.
5. That this petitioner believes that the respondents attor-
nies have known about this petitioners ssibale release, on
August 7, 1993 and that the true reasons behind the respondents
reouests for extensions of time, was to vex this case as long as
possible, all the while, waiting for this petitioner to be rele-
ased from confinement, then to move this court for a dismissal of
thie case, on the grounds that no relief can be granted to this
petitioner, by way of the Writ, because this petitioner would no
longer be in confinement, making this petitioners case, moot.
6. Thatfthis courts order of May 13, 1993, and granting this
petitioners claimes, a liberal construction, under Haines vs.
Kerner, 404 U.S. 519 (1972), this court has assertained from this
petitioners petition, that this petitioner was challenging the
revocation of this petitioners parole and that thie petitioner
had listed the following grounds for relief:
(1) That this petitioner was denied the right to a prelin-
inary hearing concerning alleged parole violations;
(2) That this petitioners conditional release date was sus-
pended without a hearing;
(2) | 65
(3) That thi. petitioners parole revoca. n hearing was
constitutionally flawed and did not comport with the principles
of due proeess; and
(4) That this petitioner was denied the oppertunity to re-
view the evidence relied on in revoking this petitioners parole.
7. That this petitioner will attempt to substaniate the
grounds, listed herein, by way of this courts order on May 13,
1993, as the grounds for which this petitioner seeks relief and
a final adjucation of this matter.
8. That on July 16, 1992, this petitioner was “picked up",
not arrested, by the Kansas City Police Department, for the pur-
pose of a (20) twenty hour investigation, into the alligation
of the crime of rape.
9. That before the (20) twenty hour investigation was over,
on July 17, 1992 this petitioners parole officer issued a war-
rent for this petitioners arrest, for parole violation,and,this
petitioner was taken to the Jackson County Jail, in Kansas City,
Wissouri. Please see exhibit A.
10. That also on July 17, 1992 this petitioners parole of-
ficer conducted an interview with thie petitioner and this pet-
itioners parole officer handed this petitioner a copy of the
warrent for arrest and detention of this petitioner, a copy of
the rules and regulations of the Missouri Department of Proba-
tion and Parole, in a handbooklet entitled, "Rights of Alleged
Parole Violator to Preliminary and Revoaation Hearing", and, at
oo
‘the ill-advice of this petitioners parole officer, who stated
that he had probable cause to violate this petitioner and that
"this is only a formality", he asked this petitioner to sign a
waiver to a preliminary hearing on the (2) two alleged viola-
tions of the conditions of this petitioners parole, which where
shown on the warrent for arrest and detention of this petitioner,
and this petitioner was given a copy of schis signed waiver as
well. Please see exhibits A and B,
ll. That after this petitioner had signed the waiver, exhibit
"BY, and was able to read and comprehend what this petitioners
rights actually where, at a preliminary hearing, even under the
rules and regulations of the Missouri Department of Probation &
Parole, did this petitioner realize that he should not have
66
(4)
signed the waive: of his right to a prelimin. y, hearing, on
the (2) two alleged parole violations, that where on the warrent
for arrest and detention of this petitioner.
12. That on approximatly August 7, 1993, while this petit-
ioner was still in the custody of the Jackson County Jail, this
petitioners parole officer brang this petitioner a copy of the
violation report, prepaired by this petitioners parole officer,
and as this petitioner had read this violation report, this pet-
itioner noticed that this petitioner wassbeing violated for (3)
three violations of the conditions of this petitioners parole,
and not just the (2) two that where on the warrent for arrest and
detention of this petitioner. Please see exhibit C and compair to
exhibit A.
13. That this petitioner "did not sign a waiver" of his rights
to a preliminary hearing and the rights secured therein, on this
third alleged violation of the conditions of this petitioners pa-
role, and for this petitioner to be brought back to prison and vi-
Olated (revoked) on this third alleged violation of this petit-
ioners parole, without first affording this petitioner with a pre-
liminary hearing, and the rights secured therein, was to have vi-
olated this petitioners rights under the 5th and 14th amendments
to the Constitution, to not be deprived of "liberty”™ without Due
Process of Law, and even the Supreme Court Justice BRENNAN has
stated:
"I agree that a parole may not be revoked, consistently
with Due Process Clause, unless the parolee is afforded,
first, a preliminary hearing . . « « «++ee+eesee 0”
Morrissey v Brewer, 408 U.S. 471, 92 S.Ct. 2593, 2605 (1972) and
Gagnon v Scaprelli, 411 U.S. 773, 93 S.Ct. 1756 (1973), however,
this petitioners parole was revoked, without first affording this
petitioner with a preliminary hearing on the third alleged viola-
tion of the conditions of this petitioners parole.
14. That by not affording this petitioner with a preliminary
hearing and the rights secured therein, on the third alleged vio-
lation of the conditions of this petitioners parole, as stated on
the violation report,(exhibit C), this petitioner was denied his
right and ability to defend himself, to present witneeses and
documented evidence, the right to confront and cross-examine any
(4) 67
adverse witnesees (unless the hearing officer specifically finds
good cause for not allowing confrontation), and disclosure of
the evidenc against this petitioner, all of which might have been
used and asserted by this petitioner, to prove that there might
not have been probable cause to take this petitioner back to
prison,
15. That also by not affording this petitioner with a pre-
liminary hearing and the rights secured therein, on the third
alleged violation of the conditions of this petitioners parole,
this petitioner was prejudiced, in that if this petit-
ioner was afforder a preliminary hearing and the rights secured
therein, on the third alleged violation of the conditions of
this petitioners parole, then this petitioner might have been
able to shed enough light to have cleared himself on the third
alleged violation, and this petitioner, as well, might ha.--
been able to clear himself on the first (2) two alleged viola-
tions of the conditions of this petitioners parole, which had
caused this petitioner to be arrested and detained, as all three
(3) alleged violationd of the conditions of this potitioners pa-
role, where related, and to have cleared this petitioners self
on one alleged violation, was to have possibly cleared this pet-
itioners self, on all three (3) alleged violations of the con-
ditions of this petitioners parole,
16. That this petitioner remained in the custody of the
Jackson County Jail, in Kansas City, Missouri, until August 25,
1992, when this petitioner was transported back to the Missouri
Department of Corrections, at the Pulton Reception & Diagnostic
Center,(F.R.D.C.), in Pulton, Missouri.
17. That while this petitioner was detained at the F.R.D.C.,
on September 14, 1992, this petitioner was interviewed by an in-
stitutional parole officer, a Peggy M°Clure,.
18, That at this interview, on September 14, 1992, Peggy
M°Clure handed this petitioner a copy of the warrent for arrest
and returenof this petitioner, a copy of the scheduling notice
for this petitioners revocation hearing, and a copy of the form
in which this petitioner had requested a revocation hearing on.
ease see exhibits D, =, and F, =
68
(5)
19. That also at this interview, on Septeuwoer 14, 1992,
Peggy M°Clure imformed this petitioner that it was this petiti-
oners responsibility to contact witnesses and to secure counsel,
for this petitioners revocation hearing, on September 24, 1992,
and that she was authorized to offer this petitioner (1) one
stamp and a@ phone call, for this petitioner to contact witnesses
and to secure counsel with, and further, that this petitioner was
being brought in front of the board, for violation of Laws, Drugs,
and the posession of a dangerous Weapon, all of which this petit-
ioner denied,
20. That on September 20, 1992, this petitioner wrote the in-
stitutional records office, at F.R.D.C., to find out if this pet-
itioner had any holds, warrents or detainers, placed against this
petitioner. Please see exhibit G.
21. That this petitioner was reading in his handbooklet, en-
titled "Rights of Alleged Violator To Preliminary and Revocation
Hearing", issued under the authority of the Missouri Department
of Probation and Parole, and on pages 8 & 9, of this booklet, this
petitioner noticed, among other things, that this petitioner had
been given the right to have a represenative of "this petitioners
choice”, at this petitioners revocation hearing, on September 24,
1992, and that such choices may include, family members, friends,
employers and legal counsel. Please see exhibit H.
22. That also on September 20, 1992, this petitioner, being
faced with very littel time and virtually no money, had wrote the
institutional parole officeer, Peggy M°CClure, and this petitioner
requested that this petitioner be allowed to have an inmate para-
legal, a avid Graham, at F.R.D.C., to be present and this petit-
ioners legal counsel, at this petitioners revocation hearing, on
September 24, 1992. Please see exhibit I, with the original being
on file with the Supreme Court for the State of Missouri, under
case mumber, 75670.
23. That on September 21, 1992, this petitioners note, exhibit
I, was returned to this petitioner, with this petitioners request
being denied. Please see exhibit I.
24. That although the State of Missouri has not incorporated
into its legislation, the rights of a parolee at and in a revoca-
tion hearing, according to Missouri Practice, volume 19, section
(6)
69
551, this petitioner did have the right to a Jantidtitiitien. of
this petitioners “choice”, at this petitioners revocation hear-
ing, on September 24, 1992, and appearently this is endorsed,
along with other rights, by the Supreme Court in, Black v Ra-
mano, U.S. 105, S.Ct. 2254, 85 L.Zd.2d 636 (1985); see also,
Abel v Wyrick, 574 S.W.2d 411 (Mo, bane 1978),
25. That even under the rules and regulations of the Mies-
ouri Department of Probation & Parole, exhibit H, this petitioner
had a liberty interest involved, in this petitioner having a rep-
resenative of this petitioners "choice", at this petitioners rev-
ocation hearing of September 24, 1992, and courts have held that
a"liberty interest" could be found in state statutes, judicial
decrees, or by rules and regulations; see, Kozlowski v Coughlin,
539 F. Supp. 852 (S.D.N.Y¥. 1982); Parker v Cook, 642 F.2d 865
(1981); amd, ™igliese v Nelson, 617 F.2d 916 (1980). Please see
exhibit H.
26. That also, when this petitioner requested a represena-
tive of this petitioners "choice", this petitioner chose to be
represented by an inmate para-legal, at F.R.D.C,, to represent
this petitioner at this petitioners revocation hearing, on Sep-
tember 24, 1992, but when this petitioners request was denied, in
essance, this petitioner was denied the right to legal counsel, at
this petitioners revocation hearing, as the requirements of due
process are the same for probation and parole revocation hearings,
see, Baker v Wainwright, 527 F.2d 372 (1976), and the requirement
of due process is,
". . « counsel should be provided for indigints
on probation or parole cases where, after being
imformed of his right to request counsel, the
probationer or parolee makes such a request . .”
Gagnon v Scaprelli, 411 U.S. 778, 93 S.Ct. 1756, 1760 n. 5 (1973).
27. That this petitioner isc not claiming as a groung for re-
lief, that this petitioner was denied his right to be imformed of
the right to request counsel, although this surely should be con-
sidered, but when this petitioner was told that it was this pet-
itioners "responsibility" to secure counsel, for this petitioners
revocation hearing, and with this petitioner having virtually no
money, when this petitioner wrote the note requesting that an in-
O) 70
mate para-legal, c¢ F-R.D.C,, be allowed to pesent this petit-
ioner, at this petitioners revocation hearing, if the State of
Missouri was not going to provide this petitioner with legal rep-
resentation, then this petitioner should not have been denied the
right to have a represenative of this petitioners choice, but
with this petitioner not being imformed of his right to request
counsel, and that counsel mbght be provided for this petitioner,
if this petitioner was indigint and denied the alligations, along
with this petitioner not being allowed to have a represenative of
this petitioners "choice", choice being an inmate para-legal,
then this petitioners minimum due process rights, as described in
either Morrissey v Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972),
or Gagnon v Scaprelli, 411 U.S. 778, 93 S.Ct. 1756 (1973), were
violated and denied to this petitioner.
28. That if nothing else, when this petitioner wrote the note
(exhibit I), to Peggy McClure, at F.R.D.C., an inquiry should have
been held to determine if legal counsel, should have been appointed
for this petitioner, by the Missouri Department of Probation & Pa-
role, but it wasn't.
23. That on September 24, 1992, this petitioners revocation
hearing, went as scheduled, without informing this petitioner of
his right to confront and cross-examine witness, and by not im-
forming this petitioner of his right to confrontand cross-exan-
ine witnesses, this petitioners due process rights, may have been
violated. See, Lawrence v Smith, 541 F.Supp. 179-187 (W.D.N.Y.
1978). This petitioner is not claiming this as a ground for re-
liefe, but surely this should be considered.
30. That this petitionere revocation hearing, on September 24,
1992, was centered arround this petitioner being questioned about
the alligation of rape against this petitioner, with this petit-
ioner consistintly challenging and denying the accuracy of the
violation report, and one parole board member started the
hearing off, by stating, I see here that the violation repot says
that you (meaning this petitioner) have been arrested and charged
with the crime of rape, and immeadiatly this petitioner epoke up
and stated that this petitioner had not been charged with the
crime of rape and thie petitioner handed the board member, ex~
hibit G, to show that even some (70) days later, this petitioner
(8) 71
had still not bet. charged with the crime of _ ape, or any other
crime, sence this petitioner had been put on parole.
31. That even with the knowledge that this petitioner had
not been charged with the crime of rape, this one parole board
member continued to question this petitioner about the alligation,
with this petitioner contiming to deny it.
32. That this one parole board member stated that the viola-
tion report states that this petitioner had used a weapon (screw-
Griver) against the alleged victim, and this petitioner pointed
out that on page two (2) of the violation report, that the report
stated that the alleged victim wasn‘t "clear" as to what point
the weapon "might" have even been used, clearly putting doubt on
the accuracy of the alleged victims statement and the violation
report or if this petitioner even used a@ weapon, at all, against
anyone,
33. That this one parole board member started showing signs
of irratation and stated that the violation report states that
this petitioner had admitted to useing drugs, but this petitioner
denied this alligation.
34. That this one parole board member really got irratated
at the proceeding of this petitioners revocation hearing, and
slamming his hande on the tabel, this one parole board member had
stated, you mean that you are not going to admit to these viola-
tions, and this petitioner said ne, as the violation report was
untrue and thé alligations against this petitioner are wrong and
that this petitioner should not be getting violated.
35. This petitioners revocation hearing, on September 24,
1992, was ended, but this petitioner was never told "why" there
where no adverse witnesses present and against this petitioner
at this petitioners revocation hearing, but for the purpose of
this court, the hearsey violation report, exhibit C, clearly
states that thie petitioner was at the K.C.P.D, on July 16, 1992,
on a “twenty hour hold", and that the alleged violations, #1,
LAWS, and, #7, WEAPONS, where being held in abe » but the
Missouri Department of Probation & Parole revoked this petitioners
parole, on all three alleged violation, even though this petit-
ioner had not violated any laws or been found to be in posession
of any dangerous weapons, Please see exhibit N.
(9) 72
36. That for we purposes of this court, ' this date, this
petitioner has not been arrested and/or convicted of any crime,
nor has this petitioner been found to be in posession or tested
positive, of any drugs, sence this petitioner was placed on pa-
role, On April 16, 1992, nor has this petitioner been found to
be in posession of any type of a dangerous weapon, nor has this
petitioner been found to be in use of or admitting to the use
of drugs, sence this petitioner was placed on parole, on April
16, 1992 and the Missouri Department of Probation & Parole
should not have revoked this petitioners parole, on September
24, 1992, for violating the conditions of this petitioners pa-
role, as described on exhibits F & N, and according to Mo. Rev.
Stat. section 217.720;
"If no violation is established and found, then
the parole or conditional release shall continue. . ."
37. Taht a violation of the conditions of this petitioners
parole, was not established or found on violations #1. Laws &
#7. Weapons, and the only violation of the conditions of this pe-
titioners parole that “might” have been established, was the
alleged use of a » and that is only because the violation re-
port, hearsey, stated that this petitioner had admitted to useing
drugs, which this petitioner did not.
38. That ". . . the first step of revocation decision
involves retrospect factual question whether
parolee had in fact violated one or more
conditions of his parole. Only if it is de-
termined that the parolee did violate the
conditions does the second question arise:
should the parolee be recommitted to prison
or should other steps be taken to protect
society and improve chances of rehabilita-
tion."
Gagnon v Scaprelli, at 784, 93 S.Ct., at 1760, quoting Morrissey
408 U.S., at 479-80, 92 S.Ct., 2593.
39. That the spirit of those decessions require that the Mis-
souri Department of Probation & Parole, must find that this pet-
itioner “had in fact violated one or more of the conditions of "
this petitioners parole, and, that once the violation has been
73
(10)
"established", (hot Rev. Stat. 217.720), by ' _rifiea facts",
Morrissey, supra, Key 272, should this petitioner be recommitted
to prison or should other steps be taken to improve chances of
rehabilitation for this petitioner?
40. That this petitioners parole officer had seen fit to rec-
commend “Continuance” of this petitioners parole, (page 3 of ex-
hibit C), but the Missouri Department of Probation & Parole de-
cided to revoke this petitioners parole, without “varified facts",
and to recommitte this petitioner to prison without even attemp- .
ting to improve this petitioners chances of rehabilitation, com-
pletly distroying the spirite of both Gagnon & Morrissey, supras.
41. That this petitioner believes that a large part of the
parole boards prejudice against this petitioner, was due to the
fact that this petitioners parole office had stated in the vio-
lation report, (page 3 of exhibit C), that this petitioner was a
registered sex offender, and with this petitioner being quest-
ioned about the alligation of rape, the parole board conclusively
presumed this petitioner to be guilty, and revoked this petitioners
parole.
42. That the Supreme Court in Morrissey v Brewer, 408 U.S. 471,
92 S.Ct. 2593 (1972), Constitutionel Law, Key 272, hes stated:
"What is required by due process for parole
revocation is informal hearing structure to
assure that finding of parole violation will
be based on varified facts ... U.5.C.A.147
and the District Court for the Southern District of New York has
Clearly stated;
"At parole revocation hearing, burden is on the
state to show violation of conditions of parole
by preponderance of evidence, ... ”
Johnson v Kelsh, 664 F.Supp. 162 (S.D.N.¥. 1987).
43. That this petitioners parole was not revoked on “varified
fects" or by e “preponderance of the evidence”, but rather, this
petitioners parole was revoked on unsupported hearsey evidence,
which violated this petitioners rights under the 5th, 6th and 14
th Amendments to the Constitution of the United States.
44. That for the purposes of this court, this petitioner is
relying heavely on the decession in State Ex Rel. Mack v Purkett,
(12) 74
825 S.W.2d 851 (~..bane 1992), and, IN RE CA. MN, 789 S.W.2a 495
(Mo.App.1990), where both of those courts held that the petit-
ioners in those cases, were denied their minimum due precess ri-
ghts, by not being allowed to confront and cress-—examine adverse
witnesses, and the Supreme Court for the State of Missouri, in
Purkett, supra, page 854, emphised:
"The court concluded by not being able to
confront and cross-examine the person who
provided the evidemce, the petitioners ;
due process rights where violated. 789 S.W.2d 497".
45. That not only was this petitioner not allowed to confront
and cross-examine this petitioners parole officer, at this petit-
ioners revocation hearing, on September 24, 1992, but this petit-
ioner was “never” told “why” there were no adverse witnesses at
this petitioners revocation hearing, and the Supreme Court for the
state of Missouri has ststed, in Purket, supra, page 857:
". . « the clear requirment of Morrissey (is)
thet the hearing officer speciffically find
good cause for not allowing confratation. Un-
doubtedly, that requirment must be meet as a
precondition to considering purely hearsey
statements of persons not subject to confra-
tation .. .™
and for the parole board to not imform this petitioner, at the
begining of this petitioners revocation hearing, “why” there were
no adverse witnesses at this petitioners revocation hearing, on
September 24, 1992, was to deny this petitioner of his minimum
due process rights, as described in either, Morrissey v Brewer,
408 U.S. 471, 92 S.Ct. 2593 (1972), and, Gagnon v Scaprelli, 411
U.S. 778, 93 S.Ct. 1756 (1973).
46. That this petitioner was prejudiced, by not being allowed
to confront and cross-examine this petitioners parole officer, at
this petitioners revocation hearing, on September 24, 1992, in
that if this petitioner was able to cross-examine this petitioners
parole officerg at this petitioners revocation hearing, then this
petitioner could have shown that this petitioners parole officers
violation report, exhibit C, was inaccerate and untrue, but with-
out this petitioner bebng allowed to cross-examine this petit-
(12)
ioners parole officer, at this petitioners revocation hearing, on
September 24, 1992, the parole board took this petitioners parole
officers report, exhibit C, as absolute truth, and this petit-
ioners parole, “liberty”, was revoked. Please see exhibit N.
47. That in dealing with the parole boards decission to rely
"soley"on the violation report, exhibit C, as the basis for re-
voking this petitioners parole, the Alabama Criminal Appeals
Court has held:
"But where the only evidence at a revocation
hearing was a parole violation report that
consisted of information that had in turn been
ubtained from police reports, the violation
reports where held not to have sufficient in-
dicie of reliability. Hill v State, 350 So.2d 716-18
(Ala.Crim.App.1977)", cited “rom Mack v Purkett, 825 S.W.2a 851,
856 (Mo.banc 1992).
48. That in violating this petitioners parole, the parole
board, should not have held the violation report, exhibt C, as
having indicia of reliability, as it was unsupported, hearsey,
bias, and clearly prejudicial against this petitioner, further,
with the Missouri Supreme Court, in Purkett, supra, articulating
the use of hearsey evidence, against a parolees right to confront
and cross-examine adverse witnesses, through the Missouri Attorney
Generals Office, the parole board kmew, or should have known, that
by revoking this petitioners parole, based"soly”on an unsuported
violation report, was to deny this petitioner of his minimum due
process rights, es mandated in Morrissey v Brewer, 408 U.S. 471,
92 S.Ct. 2604 (1972), through the decessions that were handed down
in Mack v Purkett, 625 5.8.24 851(Mo.bancl992), and, IN RE CARSON,
789 S.W.24 495(Mo.App.1990), but the parole board revoked this
petitioners p.role, anyways.
49. That for the Missouri Department of Probation & Parole, to
revoke this petitioners parole, based “soley” on an unsupported
violation report, was to revoke this petitioners parole on hearsey
evidence, and to deny fhis petitionee Wis -vights, under the confre-
tation clause, of the 6th Amendment to the Constitution of the
United States of America, as the Missouri Court of Appeals has
clearly stated: 76
(13)
“Pet. soners complaint that he w. Wenied
the right to confrtation and cross-exam-
ination is well founded. Petitioner was
entitled to confront and cross-examine the
person who provided the evidence which re-
sulted in his loss of liberty. By not
being afforded that opportunity, petiti-
oner was denied the minimum rights of due
process to which he was entitled.”
IN RE CARSON, 789 S.W.2a 495, 497 (Mo.App.1990).
50. That this petitioners revocation hearing, on September
24, 1992, was not unlike the revocations, in either Mack v Pur-
kett, 625 S.W.24 851(Mo.bancl992) or IN RE CARSON, 789 S.B.24 495
(Mo.App.1990), where the courts in both those cases ad jucated
that the petitioners where denied their minimum due process rights,
because they were not allowed to confront and cross-examine any
adverse witnesses, at their revocation hearings, and with this
petitioner not being told why there where no ad-
verse witnesses, and this petitioner not being allowed to confront
and cross-examine this petitioners parole officer, at this petiti-
oners revocation hearing, on September 24, 1992, then this court
should edjucete that this petitioners minimum due process rights
weRe denied to this petitioner as well.
51. That,
". » »« fundamental liberty is valuable and
its termination inflicts a grevious loss
on the parolee, (and) the court concluded
in Morrissey that the decission to revoke
parole must be made in comformity with due
process standards. 408 U.S., at 482, 92 S.Ct., at 2600"
cited from Gagnon v Scaprelli, 411 U.S. 778, 93 S.Ct. 1756(1973).
52. That by not affording this petitioner with his minimum due
process rights, at this petitioners revocation hearing, on Septem-
ber 24, 1992, as mandated in either Morrissey or Scaprelli, su-
pras, end then revoking this patitioners garole, based “soley” on
unsupported hearsey evidence, the parole board caused this petit-
ioner to suffer a grevious loss of his “liberty”, without due
( 14) 77
process of law, in violation of this peti tione.« federally pro-
tected rights, under the 5th, 6th, end 14th Amendments to the
Constitution of the United States.
53. That not only was this petitioner denied his minimum due
process rights, at this petitioners revocation heering, on Sep-
tember 24, 1992, but this petitioner was not even provided with a
written statement by the factfinders,
"as to the evidence relied on and
the reasons for revoking parole."
Morrissey v Brewer, 408 U.S. 471, 92 S.Ct. 2593, 2604 (1972).
54. That even under the rules and regulations of the Missouri
Department of Probation & Parole, in this petitioners handbooklet,
entitled, “Rights of Alleged Violator to Preliminary and Revoca-
tion Hearing", on page (10), of exhibit J, it states:
“after the revocation hearing, the Parole
Board will supply the alleged violator
with ea written notice within ten (10)
working days setting out their decision.
This notice will be sent within ten (10)
working days from the time the decision
was made.” Please see exhibit J, page 10.
55. That this petitioners exhibits K, L, and M, will show this
court, that this petitioner did not recieve within (20) working
days, or eveh one-hundred and twenty (120) days, a decision from
the parole board as td the evidence relied on and the reasons for
revoking this petitioners parole, in fact, it took this petiti-
ioner the grievance procedure of the Missouri Department of Cor-
rections, and, one-hundred and twenty-one days (121), for this
petitioner to recieve a written statement from the parole board,
as to evidence relied on in revoking this petitioners parole, but
to this date, this petitioner has not recieved a written statement
from the parole board, as to the reasons for revoking this petiti-
oners parole. Please see exhibits M & N, which this petitioner re-
cieved on or after January 23, 1993; four months and one day, after
thie petitioners revocation heering, on September 24, 1992.
56. That the minimum due process requirments of Morrissey or
Gagnon, supras, clearly require that this petitioner to be provi-
ded, with "a written statement from the factfinders as to the
78
(15)
evidence relied ._ and reasons for revoking 1 le, Morrissey,
supra, pagw 2604, and withput this petitioner being provided with
a written ststement from the parole board, of the reasons for re-
voking this petitioners parole, this petitioners minimum due
process rights where violated, under the standards as mandated in
both Morrissey, and, Scaprelli, supras, and further:
"There is no place in our system of law for
reaching a result of such tremendous con-
Sequences without ceremony — without hear-
ing, without effective assistance of coun-
sel, without a ststement of reasons. Kent v
United States, 383 U.S. 541, 554, 86 S.Ct.
1045, 1053, 16 L.Ed.2da 84 (1966):
cited from Morrissey v Brewer, 405 U.S.495, 92 S.Ct. 2593, 2608
(1972).
57. That the spirit of Morrissey, supra, page 2604, is that
the entire parole revocation process, should be completed in about
two (2) months, as the Supreme Court in Morrissey, supra, has
stated:
“A lapse of two months, . .. would not
appear to be unreasonable’?
however, from the date in which this petitioner was arrested for
@lleged parole violation, July 17, 1992, until this petitioner had
“finally” recieved a written statement from the parole board, was
well over six months, and any time over the two (2) months period,
as suggested in Morrissey, supra, should be held to be unreasonable,
and in this petitioners situation, a denial of this petitioners
minimum due process rights, and esspicailly so, sence this petit-
ioner has still not recieved a written statement from the parole
board, for the reasons for revoking this patitioners parole.
58. That without this petitioner recieving a written statement
from the parole board, concerning this petitioners revocation
hearing, and before this petitioners conditional release date of
October 16, 1992, this petitioner "thought" that he still retained
his mandate conditional release date, on October 16, 1962, however,
what this petitioner found out was, was thet this petitioner had
lost his conditional release date of October 16, 1992, when this
petitioner was brought back to prison and labeled a parole vio-
lator. ” 3
(16)
59. That pursuant with court order and Mi ouri Laws, this
petitioner was sentenced to the Missouri Department of Corrections,
on November 8 » 1990, for the term of two, 3,3, year sentences, to
run concurrently, and with this petitioner being granted jail time,
this petitioners sentence start date, was October 17, 1990.
60; That according to Mo. Rev. Stat., 1992, Volume 3, section
558.011:
1. The authorized terms of imprisonment, including
both prison and conditional release terms, are:
4. (1) Asentence of imprisonment for a term of years
shall consist of a prison term and a conditional
release term. The conditional release term of any
term imposed under section 557.036, R.S.Mo.,
shall be:
(a) One-third for terms of nine years or less;
61. That this petitioner was sentenced to the Missouri Depar-
tment of Corrections, for a sentence of three years, and according
to Mo. Rev. Stat. 558.011, and for this petitioner to serve one-
third of his sentence on conditional release, this petitioner
would have had to been released from prison, on October 16, 1992,
to serve one-third of this petitioners sentence on conditional re-
lease, until this petitioners maximum release date of October 16,
1993.
62. That also according to Mo. Rev. Stat., section 558.11,
this petitioners conditional release date of October 16, 1992,
could be extended up to this petitioners maximum release date of
October 16, 1993, by the board of probation and parole, however,
before the board could extend this petitioners conditional release
date, under subsection 5, of Mo.Rev. Stat. 558.011, the board must
be petitioned :
Within ten working days of reciept of the petition
to extend the conditional release date, the board
of probation and parole shall conviene a hearing on
the petition. The offender shall be present and may
call witnesses in his behalf and cross-examine wit-
nesses appearing against him. . .
63. That this petitioners exhibits J and O will show that un-
der the policies and practices of the Missouri Department of Pro-
(17) 80
bation and Parole, that when an offender is rought back as a
parole violator, the inmate is not eligible for conditional
release date", and, that this policie of the Missouri Department
of Probation and Parole is enforced by the Missouri Department
of Corrections, as exhibit 0, clearly shows that when an offende
is brought back to prison, "C R date is automatically removed".
Please see exhibits J, page 11, and exhibit O.
64, That the respondent will surely argue that this petit-
ioners conditional release date of October 16, 1992, was not
taken from this petitioner, until after this petitioner had been
revoked by the parole board and pursuant with Mo. Rev. Stat. 558.
031, subsection 5, which states:
"If a person released from imprisonment on
parole or serving @ conditional release
term violates *~y of the conditions of his
parole or release, he may be treated as a
parole’ violator under the privisions of
section 217.720, RSMo. If the board of pro-
bation and parole revokes the parole or
conditional release, the paroled person
shall serve the remeinder of his prison term.. .”
65. That this petitioners exhibits J and O have shown this
court, that the policies and practices of the Missouri Department
of Probation and Parole, enforced by the Missouri Department of
Corrections, is quite differant then what is required in Mo. Rev.
Stat. 558.031, subsection 5, as Mo. Rev. Stat. 558.031, subsec-
tion 5, calls for an offender to be seen by the parole board and
that his release be reviewed, pursuant with section 217.720, R.S.
Mo., which requires a hearing in conformity with dup process,
but exhibite J and O clearly show thet an offenders conditional
release date is taken from that offender, when the offender is
brought back to prison and labeled a parole violator, without any
type of a hearing or due process of law.
Please see exhibits J and 0.
66. That this petitioners P, is an institutional face sheet
on this petitioner, and in the upper left hand corner, it shows
thet this petitioners face sheet was “updated” on September 23,
1992, by the Missouri Department of Corrections, one (1) day
(18) 81
SS eee
-
before this petitioner was seen by the paro__ board for parole
revocation, so the respondents argument that this petitioners
conditional release date of October 16, 1992, had not been taken
from this petitioner until “after” this petitioners parole had
been revoked by the parole board, and, pursuant with Mo. Rev.
Stat. 558.031, 5, is moot, as this petitioner was not seen by
the parole board for parole revocation, until September 24, 1992.
Please see upper left hand corner of exhibit P, and compare the
date, to this petitioners actual revocation hearing, on exhibit D-
- 67. That this petitioners exhibit Q. is an institutional
face sheet, for an inmate that was released from confinement,
and as this court will notice, that this inmates institutional
face sheet, includes umong other thing@, thAt inmates condit-
ionel release date, pursuant with Mo. Rev. Stat. 558.011, 1, 4,
(a), and clearly showing that conditional release dates are in-
cluded on institutional face sheets, however, this petitioners
institutional face-sheet, does not show a conditional release
date, at least one (1) day before this petitioner had seen the
parole board for revocation, and this petitioners exhibit R, is
another institutional face sheet on this petitioner, which wes
updated after this petitioner had seen the parole board, and in
both face sheets, there is no mention of a conditional release
date. Please see exhibits P and R, before and after revocation.
68. That both Mo. Rev. Stats. 558.011 and 558.031 require
and mandate, that some form of a hearing is to be conducted, be-
fore this petitioners conditional release date, of October 16,
1992, could have been taken from this petitioner, however, this
petitioner has submitted to this court, three (3) exhibits, that
show under the policies and practices of both the Missouri Depart-
ment of Probation and Parole, and, the Missouri Department of Car-
rections, that without « hearing or due process of law, when an
offender is “brought back as a parole violator", his conditional
release date, is “automatically removed", and for the two depart-
ments to conduct such policied end parctices, is nothing less
then a direct violation of both Mo. Rev. Stats. 558.011 and 558.
631.
69. That this petitioners conditional release dete, of Oc-
tober 16, 1992, was taken from this petitioner, in compliance
: (19) 82
with the unlawful policies and practices of voth the Missouri
Depertment of Probation and Parole, and, the Missouri Department
of Corrections, "before" this petitioner was seen and his parole
revoked, by the parole board, without a hearing or due process
of law, and in direct violation of this petitioners rights under
the 5th and 14th Amendments to the Constitution of the United
States.
70. That under the exhaustion doctrine, the respondent will
Surely argue that this petitioner has not exhausted "all" avail-
able administrative and judicial remedies, that where available
to this petitioner, brefore this petitioner sought relief in the
Federal Court, by way of the Writ of Habeas Corpus, however,
this can easily be resolved.
71. That this petitioners exhibits K and L, will show this
court, that under the policies and practices of the Missce-~ De-
partment of Corrections, that this petitioner is not able to
address any issues, concerning the Missouri Department of Pro-
bation and Parole, in the grievance procedure of the Missouri De-
partment of Corrections, and as such, administrative remedies
are exhausted. Please see the responses on exhibits K amdl.
72. That this petitioner has brought his grounds for relief,
as stated in this petitioners petition, and herein, to the Cir-
cuit Court of Dekalb County, Maysville, Mo. by way of the Writ of
Habeas Corpus, under case no. CV592-126CC, and, in a one-sided
hearing, without this petitioner or counsel for this petitioner
being present, or allowing this petitioner to reply or respond to
the respondents response to the courts show cause order, the Cir-
cuit Court of Dekalb County, denied this petitioners petition for
Writ of Habeas Corpus.
73. That this petitioner then went to the Missouri Court of
Appeals, by way of a petition for Writ of Review, Requesting a
Writ of Certiorari, case number, 47416, while describing the
grounds of relief, as stated in this petitioners petition and
herein, because of the one-sided way in which the Circuit Court
of Dekaib Couzjty, had denied this petitioners his rights under
Missouri Rules of Court, as described in paragraph 72, herein,
while denying this petitioners petition for Writ of Habeas Corpus,
and although the Missouri Court of Appeals had requested from the
83
(20)
respondent to respond to this petitioners pcecition, on the day
after the respondent had filed his response to this petitioners
petition, the Missouri Appeals Court, denied this petitioners
petition, without affording this petitioner with the oppertun-
ity, to file a reply, response, amendment or suplamental pled-
ing, to the respondents response.
74. That this petitioner then went to the Missouri Supreme
Court, case number 75670, by way of the Writ of Habeas Corpus,
while describing the ground for relief, in this petitioners pe-
titbon and herein, but again, this petitioners petition for a
Writ of Habeas Corpus was denied, without a show cause order
being issued, or, even a reason from the court, as to “why” this
petitioner petition had been denied, however, courts have held
that the:
exhaustion requirment satisified when State Supreme
Court denied state habeas petition without comment,
see, Lewis v Borg, 879 F.2d 697 (9th Cir. 1989); see also, Jus-
tices of Boston Municipal Courts v Lydon, 466 U.S. 294, 302-03
(1984); and further:
"Complete exhaustion of State remedies prior to
bringing habeas corpus petition was exhausted by
special circumstances, including petitioner's
continual good-faith effort to bring his petit-
ion befors proper form and states officials’ fa-
ilure to take any action to rectify petitioners
predicament."see, Chitwood v Dowd, 889 F.2d 781
(8th Cir. 1989).
75, That in fact, this petitioner had filed a complaint
under 42 U.S.C. 8 1983, asserting the grounds as stated herein,
and although this petitioner speciffically stated that he was
not seeking reliese, as a form of relief, the Honorable William
A. Knox, of the central division, asserted that this petitioner
must seek relief in the form of a Writ of Habeas Corpus; case
number, 92-4554-CV-C-5, and with all being considered, this
petitioner has exhausted administrative and judicial remedies,
in a good-faith effort.
76. That this court has the jurisdicition through the Fed-
eral Rules of Civil Procedure, to treat this petitioners
(21)
84
petition for writ of Habeas Corpus or this »...ion and Request
for Final Disposition of this Matter, under the Federal Rules
of Civil Procedure, as a Motion For Summary Judgement, a Judge-
on the Merrits, a Judgement on the Pleadings, and possibly a
statement of claim, for the purposes of a complaint under 42.
U.S.C. 8 1983, or any other applicable civil rule that this
court can use to best serve justice and this petitioners in-
terests, and although this petitioner might be released on Aug-
ust 7, 1993, for the piuposw of a final adjucation in this mat-
ter, courts have held:
custody requirment satisfied when prisoner
released on parole after hebeas petition
filed. see, Gordon v Duran, 895 F.2d 610-612 (Sth
Cir. 1990); see also, Jones v Cumningham, 371 U.S. 236,243 (1963;
Kolocotror‘= v Holcomb, 925 F.2d 278,279-80 (8th Cir. 1991).
77. That this court granted the respondents second request
for an extension of time, up to and including July 7, 1993, how-
ever, this petitioner did not recieve the respondents response,
until five (5) days after the deadline date of this courts order,
and that was on, July 12, 1993. |
78. That the respondents have submitted into evidence, res-
pondents exhibits 9, 10, and ll, that this petitioner has never
seen or had knowlegde of, until this date, July 12, 1993.
7°. That the respondents exhibits 9, 10, amd ll, is a revo-
cation report, that was filed out and submitted to the parole
board, by the institutional p-role officer, Pegay M°Clure, for
the purpose of the parole board to review in their final decis-
ion to revoke this petitioners parole.
80. That the Revocation Report, respondents exhibits 9, 10, ancl II,
18 a Revocerhon Aepoat , that 15 basedl on this petitioneas aro! af.
Ficees stial vio lat von hepokt, petitonces Sx/ubit C, ard COASIAMeR ING that
the Kesponckents éxhibits J, 10, and /!, is a Revocatin Reooa, basco!
Soles“ on Another Report 4 pes pronclents exhibits F 0, ane! //, 1S
Stihl, heatsng evidence that was presenkel to the fraoke bcnA,
Septem ber R44 yf 992 , i thot this petitioners Knout ledge of sch :
85
(22)
8!. That uncke the minpnium Ave pnoC ess Reqament ia
SK V cf, VOE SS. 47, H89, WA S.C4, A593, MLO,
(1972), this petitioner Aas A LIGht 10 the Asclouswee” of
Sviclence aoninst This fettionce, And, a Aight te con Coon? ancl
C0085 - stamine roles witnessess © unless the hening Aheek sa-
cihroally funds good cae foe rot Atfeaing con faa toto hoakuet,
Respontents sihibits 9,10, aad /, ams euatance that hs sub-
mitled te the farcole boape, at this petitencar kevocatrin hexeing,
on Seaton bee 24, 1992, kv? As pethonce ems po? rerfaac! pok wns
Kesyondents exhibits 9,10, and/1, Abschsec/ +o this pretthoice, at
this pttences Revocad ron ¢-> «nga to this take, Tilly be, 1993, tii
pethince has att knoun of the existance of hesgucteads exhibit 9,
/o, mal 1, And 10th the apeole boaed Aevesing heyondent sikbrts
9,10, nnct 11, pesee t et abeitry 1his petdionces gotole, wtthout A: -
Sesin, His snderce 10 this petrtronce fae Aebyttel, the getttonce ube
ctenjed his munrinem Ac panes aight, ondee (Mosti sey, Sup tA ,
84. That on pnge 2 of keyoncknts exhibit 10, Peggy /” Chae
baal Statecl that Hhyspoettience tact rolm ite! to hat, that thes
et tonck had 14 act, vsed Cocame and Aaiyseo! to hen, that this
pet inca strtec!, 30 what": this és pume fabanamton, as this
fettonee Ona pot rata? to (699-4 (Clan. that he trl vet any
type of A chug, fet atone cocaine, Aad, s/tthodt this petrtronee beng
Allowed % corteent ancl otoss- traning Aeagy OChite, at thi pet?
tonees Kevoontiin henting, on September. 24,1992, His petrtroncs avs
deed his Aight to con fastaten ard chess examnng Leggy 11 Clune,
7o Rebull Any fabencation that 4394 lChone AAD Submited fo
the panck banec/, ard further, foggy /™ Chae us at Ff b.¢.,
on the alate of this petrtonces pnpok evocati6n, hot ths petitiorex
86
(23)
cuns no? rlol by She heneirg ofhicez, “why. e994 IF Clie 4AS
not at Ybys fai toncts Revocntion heating on Septem bea &4, 1992,
pnd! As such, Ths petitianeh was lemecd his rani olve fhocess
hich, ined (Mopwissey , Supee ,
83. That tis petrhonce oes not amnt To being ang Ned Gltoutity
Yf, but with the Reciept of the Resporclent aespone 70 Yes cove shad
onuse onder, Thais the Fact time Yhat this petitionce has Ana! ang” kare
leche of Respondents chibi 9,10, aac, M, Arid, this petrtiones 1;
Request ig that Respondents exhibits F,10, and, H, 70 be siyyacssed
from he Evidence ’ Mhangh the Fed atal Foles of Cur Jpocehatc, As
being henssey, fabeacted pp palnited p43 fie Uihencas pantole
Rardcation henaiirg, on Septem bee 24,1992, wn thest thispe tiveness
Kawsledlge pnd sn viblation of 4, petitoncts Minimum Me process eg hee
SA. That in response 10 the Respondents Stakment As to Meath
ON PAGE 6) of the Respondents AESfonse, the Acs lent 13 ASSCR
tmnng that becaose this ferttionck tad signed a Wwawer of his aight
ton pre linn ray hearing on the D allecfe! aobetens of the conott hans
of ts petite tees frsole, ia potchences sxhibits Aand 8, that by
SiGning this alniice, this pethanee hat mack an admission 8 te taro
bases for the antes?” Uhich had, “acetainly const; tutes probable CASE
he a mone Hetaikd “araole Aevocat en proceediig . -ka« Ke anol nta~
kpkett kespordent response, page Land § .
8S. That is pbsiomecd for the pesponcten? to niseat Vhet because
thi: pe thinee Aad signed a wmvee, that the amuce Constitvles an
pdtnssien of gut by Yhis fetthonce.
9. That foe Me freposes ofa Firal papeater of his rants,
4 thes cova? gant this petibronce petition far. bles? of Ma bear Cape
pnd tis motion, a libeenl constaatin, see Llallace v Lock hant,
7
au) 8
70/ Fdol WA, 727 C8 Cie.), ceat akenied Yo U.S. 994
1983), that jf thus covet fy as that this pctitonce Aas Aisce bel
New Ghounckt foe relizt on has presentel APkeeart the oars
Hat woul! be totally nsxceatable foe A fiho-s fitignat, then this
Jetionek segues ts that this coon? si the best tateeest of this pe-
tittonee , to Olsimis such grounoks on rheoaizs, bet hychety noth
tote ly cbse gaea! them, as ths petihonce lees net knoud whit fe is
pp a Pits appheoble on not npyliinb te, aud Fachhee, ths,actitiiner
(a4 an inmed ate rinkntineyhentire, , 60 the issues won became moot
WHEREFORE, tus petitinee prays Hat Hys coved will take
this petchonees bestintescst ty haxt, when ndlucat ic, the mates o.” this
motion and/or this petrhinees petition Fre Wait of Hnbems Coupes
that iF nypeog ttle, % onde pn eMdectiaay heating pndfoe 70 aggortt
Pais pethaner ott /eg0t cwvnsel, fra and possible pnd/on fou thck
Paocerchiscs va this mated,
Westen fhe Cone. Centeh,
RRS. Box 1-E. (e-0-/s0)
Cameton, Me, 4429
Contiroak of Seruice
By hereby cathy, tata Copy of Hhis prtitionces “xh bit,
atacheot hetefe, rnct, the fone gone, tins markec!, postage fare -
pai, tis L3 2 pay of Joly 1993, to:
foaled h. Jeageson, Fissistant Aitoaneg Genenal, evhute
Ofhice Contes, F100 GeorAalrry, Site C29, Kansas Cty (00, 24ll/
Paeo-SE 88
iExfiort A
STATE OF MISSOUR’ |
DEPARTMENT OF CORRE. NS
BOARD OF PROBATION AND PAROLE
WARRANT
— -_--—
NEW OF FEN
7
ALLEGED VIOLATION OF PROBATION/PAROLE/CONDITIONAL RELEASE /HOUSE ARREST
1N176948
SPENCER. Randy G.
VIOLATIONS.
Violation of Parole Condition #1, by allegedly committing the crime of Rape.
/
io
Violation of Parole Condition #6, by alleged possession and use of crack cocaine.
Jer rest tees ©
REQUESTFO.. WwW /E
Ce ee
-- eewl4 Dae OO
1: * PRELIMINARY HEA:
REGISTER NUMBER oate
ar fl < e 19, 9: 4 Ju/F-GFl
= ‘—<, 2 * e7*
| Nave received a copy of ihe > Of Avie .c eo tor lo Preliminary and Revocation Hearing” and fully uncersiand my
to a preliminary hearing. | hereby LS MPEQUE | WAIVE # pretminary nearing.
The purpose of this hearing Is to det. mur:
Board cf Probation and Parole or to Ue Ccww ~
The charges brought against you cc asist y -
felease
THE HEARING OFFICER WAL BE P inn ~
GG. Oa “\ . OatTe
* HAL 1 LAT La ae in « a
esse AO aa =-
~<s Cok.rhd Ly. Zz 7. . Po /J-GL
We ne eee ee AX <—--?
NO Ac pec: Y AR LZ —
THIS IS TO INFORM YOU, THAT AT YOU! REGUL ~ HEARING WILL BE HELO >|
Tie "TLOGA HOw
—~"laaaal
2f probabia cause or reasonable grounds exis! to refer your case to the Mi.
1g jurisdiction. This Preliminary nearing is NOT a revocation Nearing.
oliowing violations of the condition(s) of your parole, ; ~-*stion, of cond:
UNDER THE AUTHORITY GRANTED THE BOARD OF PROBATION AND PAROLE OF THE STATE OF MISSOURI AND ITS PROBATION AND
PAROLE OFFICER BY SECTIONS 217.720 RSMo, 217.722 RSMo AND BY ORDER OF THE DIRECTOR OF THE DEPART’ *FNT OF CORRECTIONS,
YOU ARE HEREBY REQUESTED TO ARREST THE ABOVE NAMED INDIVIDUAL AND HOLD HIM/HER SUBJECT “_ THE ORDER OF THE
COURT HAVING JURISDICTION IN THIS CASE, THE STATE BOARD OF PROBATION ANDO PAROLE, OR ITS OFFICER ISSUING THIS WARRANT.
MONTH/DAY/YEAR WARRANT ISSUED OFFICER NAME AND CODE (TYPE)
| _ July 17, 1992 =07
OF FICE ADORESS SIGNATURE TION
1 F
Sex RACE BIRTH OATE AGE PLACE OF BIRTH MEIGHT WEIGHT BUND
Male | White | 3-31-56 36 _| Bloomington, Ih. LS'11" i 160 —Stocky
nan EYES «= | COMPLEXION OENTIYING MARKS Tattoo on right arm bowling ball;
Blonde | Green Fair ri
LAST KNOWN AOORESS LAST KNOWN EMPLOYER ~
104 So. Kensington, Kansas City Missouri All Seasons Car Wash, 8320 Wornall.K. CMO.
SS NUMBER Fe! NUMBER ?O NUMBER
498-62-6752 775895 | Alert # 0014239
OFFENSE
DAY /MON TH TEAR WARRANT SERVED
COUNTY CITY JA WHERE ARRESTEE BEING HELO
SIGNATURE OF SHERIFF ‘CHIEF OF POLICE
DAY /MONTH/VEAR AVAILABLE FOR TRANSPORTATION
OO 63! 20'? 14-W)
iG inane
Based on information and evidence plac 1 -
2 mum, the Hearing Othcer will determing if probable cause exists for your
to be relerred to the authority hawing jurisdic ues
ELIGIBLE FOR BOND >" 2 ec OF CUR mEARME OF ICE
90
TAT", Of an”
RUN DATE 92/09/23 DEPARTMENT OF CORRECTIY EXHIBIT D
RUN TIME 15:20:56 ADULT INSTITUTIONS PAGE 2
: ‘FACE SHEET
REGISTER NO: 176948 COMMITMENT NAME! SPENCER RANDY G
* * PRESENT CONVICTIONS # #
e#nOO lee
CAUSE NO: CR904834 CLASS: C OCN: MO CODE: 14020990 NCIC: 2299
PG: BURGLARY 2 a
SENTENCE DATE: 11 O08 1990 LENGTH: 003 00 00
SENTENCE COUNTY: JACK RECEIVED: 11 14 1990 JAIL: 0028
SENTENCE START DATE? 10 17 1990 RETURN: O8 25 1992 NON-CREDITED:
MAXIMUM RELEASE: 10 16 1993 MAX: 10 16 1993 DISC TYPE:
cc/cs: REL TO SEQ: SENT STAT? ACTIVE DISC DATE:
eROODHe
CAUSE NO: CR904834 CLASS: C OCN: MO CODE: 15010990 NCIC: 2399
PG:STEALING OVER $150.00 in
SENTENCE DATE? 11 O08 1990 LENGTH? 003 00 OO
SENTENCE COUNTY: JACK RECEIVED: 11 14 1990 JAIL? 0028
SENTENCE START DATE? 10 17 1990 RETURN: O8 25 1992 NON-CREDITED:
MAXIM™ RELEASE: 10 16 1993 MAX: 10 16 1993 DISC TYPE:
cce7cs: cc REL TO SEQ: O01 SENT STAT: ACTIVE DISC DATE:
al
agemot.
thé tn -
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wipe
and ry Legal Court!
Laz
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haunt
SEP 2 11992
INS1. PAROLE OFFICE
FRoe
to
Yn
4
WAI RECEW..
I-2Y-9%2 and
dnd (en
MY
OY,
AS. 4
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ay
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Exhibit K
STATE OF MISSOUh. -——-
DEPARTMENT OF CORReV TIONS . LOG NUMBER OATE
INFORMAL RESOLUTION REQUEST |
W-Ol-GIO-O8 [// 25-FZ
TGdaR IXD-AG TE
' TE NAM
‘Ka
COMPLAINT: STATE YOUR PROBLEM BRIEFLY
| ase Me paral bone Lye pesncaton ove (ed) tte
4 oy
OY eile 7) M4, nok bax ii hau
patce wither 0) tioihye A, ae » haves pater wv tibe “ of a , z 4)
VA Aoting Days sctlag ; Sia/. Y h, VTA ithe % A
f iS? was mad 4
TZ far 2 Light lo PP LWA.
Ion beta
yo ° «6 aa
ta broke!
te Baker th insti ton oi i 6)
KC ak U4) 4 7
Cet ss by Lec-alpitecl 39 lene! Bt
TAA A Right to An Ans Wek
ACTION REQUESTED: STATE REMEDIES YOU ARE SEEKING.
want j Y bb
~ g A trash Slat pit ints he and THA hike my Ans ner, ly M parok bontd, Ast Y
abeinan nad te Ladtnve an tot pelt on
FINDINGS:
Your complaint is regarding Probation
pe and P .
You are advised to read and follow IS8-2.1. sani
This is a non-grievable issue.
. [RECOMMENDATIONS/RESPONSE
IRR is denied.
-—- —
NYE STIGATOR SIGNATURE F
i
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ad, asl ' — it £ a
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C) satisractory _SZonsariseactony 9
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aad
Exhibit M
STATE OF MISSOURI
DEPARTMENT OF CORRECTIONS AND HUMAN RESOURCES
BOARD OF PROBATION AND PAROLE
a Date: 01/22/93
SPENCER, Randy
176948
‘WMCC
The
XXX
XXX
dlt
I. RELATING TO RELEASE CONSIDERATION
1. You have been scheduled for a parole hearing
2. You have been given parole consideration in a parole
hearing
3. You have been scheduled for release from <7
confinement. Actual release depends upon continued
record of good conduct and an acceptable release plan.
The release decision is:
Guideline Below Guideline Above Guideline ‘
* Be
7
we +
reasons for the action taken are:
II. RELATING TO PAROLE/CONDITIONAL RELEASE VIOLATION
Following your violation hearing on 09/24/92, or
your waiver of violation hearing, signed by you
on ee ee
1. You have been revoked. Your copy of the Order of
revocation is attached.
days will not be counted as time
in accordance with Board
Your New Maximum Release
2. A total of
served on your sentence,
decision pursuant to state law.
date will be.
You have been scheduled for release from confinement
on your Maximum Release date of 10/16/1993.
MBPP 216 (9-85) ;
“BL
34
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
NOTICE !!! NOTICE 1!!! NOTICE 1!!! NOTICE 1!!! NOTICE 11! NOTICE!
To the Office of the Clerk,
Unitea States District Court
“Western District of Missouri
Writ bivision,
Case No. 93-0299-CV-W-3-P ' 811 Grand Avenue
: : Kansas City, Missouri
RANDY SPENCER,
Petitioner,
vs.
MIKE KEMNA,
Respondent. KE: KANDY G. SPENCEK vs. MIKE KEMNA, Case No. 93-0299-CV-W-3-P
That the Court issued an Order, date July 15, 1993 where this
petitioner was granted and given (30) days to respond to the re-
spondents answer to the Courts Show Cause Order.
It is ORDERED that: - Thas petitioner js urgentl gays that yor office im-
a ; 7 . form the Court that this eitioner has aiready filea his response
(1) petitioner file a reply to respondent’s answer, filed July and that if the Court waits until the (30) day time limit is up,
then this petitioner will be denied his rights through a4 Writ ot
7, 1993, within thirty (30) days from the date of this Order; | Habeas Corpus, as by the time the (30) day time limit of this
Courts Order of July 15, 1993 is up, this petitioner wiil be re-
leased and out of prison, therefore, it is absolutly imparative
that thw Court be imtormed ot this change in this petitioners sit-
3
~“"*
(2) petitioner’s failure to do so will result in the dismissal
of this case without further notice; and uation and that he has already filed a response to the respondents
answer to the Courts Show Cause Order.
(3) the Clerk of the Court send petitioner a copy of this Your time and cooperation in this matter will be greatly ap-
preciatea.
Order by regular and certified mail, return receipt requested.
WESTEKN MO. CORK. CTR.
kek. Se BOX 1-E
CAMEKON, MISSOURI
SENIOR DISTRICT JUDGE 64429 1993
Kansas City, Missouri, uty Ld noh,
patea: 7-/S - 9? . %
95 96
ORIGINAL Document #_/£__
IN THE UNITED STATES DISTRICT COURT FORK THE
WESTEKN DISTRICT OF MISSOURI
WESTEKN DIVISION
KANDY G. SPENCER, )
retitioner, )
)
)
vs. ) Case No.93-0299-CV- w= ~p® sous
)
)
MIKE KEMNA, )
kespondent. )
PETITIONERS SUPPLAMENTAL RESPONSE TO THIS PETITIONERS
MOTION AND KEQUEST FOK FINAL DISPOSITION OF THIS MATTE
Comes now, the petitioner, Kandy G. Spencer, pro-se, and in
response to tnis Courts Order of July 15, 1993, this petitioner
will state as tollows:
1. That on July 15, 19%3 this Court gave this petitioner (30)
days in which to respond to the respondents answer.
2. That this (30) day time limit is unnecessary, as this pet-
itioner has already tilea his response to the respondents answer,
by certified mail, exhibit A, with @ copy being mailea to this
court, on July 13, 1993.
3. That this petitioner would like to supplement his already
tilea response to the respondents answer, by stating that the re-
spondent, in his answer, page number 8, has admitted that there
where no iive (aaverse) witnesses at this petitioners parole rev-
ocation hearing, on September 24, 1992.
THEREFORE, this petitioner prays tnat this Honorable Court
will supplament this pleading into this petitioners already filed
response to the respondents answer to this Courts Show Cause Order
ana that this Honorable Court will protect this petitioners rights
ana the eyes ot justice, by aaqjucating this matter as quickly as 97
[7
possible, thereby aajucating a tinal disposition of this matter.
, AIX A (Me vy
kin A SL
_ aE
So Kobeet ¥ Res Snob ers she ai
Lot F-19
Tokkp Va) Janie (RAK
Ltaakensbcwg, (10, C7093
(Let ent ok. Seavice
tons Male
ihe Z hepecly Cxtly ts Mn a toy 9° We foa-gans
orlegig he gait Mrs LIB TLIE ty o4Phy. (973, A
Konald L. Sexgeson, Asst. (tboency Gen. abyice orice Cnie,
Vo0 Gaoach%), Sey te 6OF Kansas Ce ty, Me
98
JOCUTIE:
UNITED STATES DISTRICT COURT FOR THE ks
| WESTERN DISTRICT OF MISSOURI ~/ FILED
|
UNITED STATES DISTRICT COURT FOR THE WESTERN DIVISION i OCT 0: 1995 °
WESTERN DISTRICT OF MISSOURI Ei yume Bu
WESTERN DIVISION PRES
RANDY SPENCER,
)
as 2
RANDY SPENCER, Petitioner, iE:
Petitioner, ' vs. ) Case No. 93-0299-CV-W-3-P
)
vs. ) Case No. 93-0299-CV-W-3-P MIKE KEMNA, )
) | )
MIKE KEMNA, Respondent. )
Respondent. )
ORDER
On August 23, 1995, the court dismissed tris habeas corpus
It is ORDERED that petitioner’s motion for final disposition
case because petitioner is no longer in custody pursuant to the
(Doc. No. 15) is noted. The resolution of this case will not be
challenged convictions. On September 5, 1995, petitioner filed a
delayed beyond the requirements of this Court’s docket. See United
otice of a al and motions for leave to proceed on a al
States v. Samples, 897 F.2d 193, 195 (5th Cir. 1990). - ppe P ppeal in
forma pauperis and for a certificate of probable cause.
Pursuant to 28 U.S.C. § 1915(a), "{a]n appeal may not be taken
4, C ; in forma pauperis if the trial court certifies in writing that it
ELMO B. "
SENIOR DISTRICT JUDGE is not taken in good faith. If the issues sought to be presented
Kansas City, Missouri, are plainly frivolous, the appeal is not taken in good faith.
>. >. > .
Dated: 2-3°9u¢ . Blackmun, In Forma Pauperis Appeals, 43 F.R.D. 343 (1967)
Furthermore, pursuant to 28 U.S.C. § 2253, "[{a)n appeal may
not be taken to the court of appeals from the final order in a
habeas corpus proceeding [unless the judge) issues a certificate of
probable cause." A certificate of probable cause will be issued
only when substantial questions of law deserving of appellate
review are presented. See, e.g., Barefoot v. Estelle, 463 U.S. 880
(1983); Clements v. Wainwright, 648 F.2d 979 (5th Cir. 1981);
99
400
I ale Document #_20 )
595 F.2d 87 (2d Cir. 1979). FILED
Because this case presents issues which are not deserving of :
AIG 9° "ORS
appellate review, it is ORDERED that petitioner’s motions for leave
MICHAEL GANS
No. 95-3629 CLERK OF COURT
to proceed on appeal in forma pauperis and for a certificate of
probable cause are denied. ~-
In- The United States Court of Appeals
Z£Z bn & : For the Eighth Circuit
ELMO B. HUNTER
SENIOR DISTRICT JUDGE
Kansas City, Missouri, .
¢
Datea: /9 -f-<- , Randy G. Spencer
Appellant
Vv.
Mike Kemna, et al.
Appellees
Appeal from the United States District Court
for the Western District of Missouri
The Honorable Elmo B. Hunter, Judge
Appellant's Petition for Rehearing, With Suggestions
for Rehearing En Banc
David G. Bandre’
Missouri Bar No. 44812
Inglish & Monaco, P.C.
237 East High Street
. Jefferson City, MO 65101
Attorney for Appellant
PETITION FOR REHEARING
COMES NOW Appellant, by and through his appointed counsel,
David G. Bandre’, pursuant to Rules 35(a) and 40(a) of the Eighth
Circuit Rules of Appellate Procedure and hereby moves this Court
to set aside its August 2, 1996, opinion affirming the District
Court's dismissal of Appellant's 28 U.S.C. Section 2254 Petition
as Moot. Further, Appellant requests that the Court grant a
rehearing thereof, or rehearing en banc because the decision is
contrary to prior decision of the Court, because of procedural
errors evident in the Court's August 2, 1996, opinion, and
because this case presents a question of exceptional importance.
The undersigned counsel expresses a belief, based on a
reasoned and studied professional judgment, that the decision is
contrary to the decision of the Eighth Circuit Court of Appeals
in Leonard vy, Ris, 55 F.3d 370 (8th Cir. 1995), and that
consideration by the full Court is necessary to secure and
maintain uniformity of decisions in this Court.
Further, the undersigned counsel expresses a belief, based
on a reasoned and studied professional judgment, that this appeal
raises the following questions of exceptional importance:
1. Is it the panel's opinion that Appellant's return to
custody is irrelevant as to the future consequences of his
alleged parole violation which was ruled upon at a
Constitutionally flawed parole revocation hearing?
2. Should the three (3) member panel of the United States
Court of Appeals for the Eighth Circuit which heard counsel's
argument in this matter on May 17, 1996, base their opionion on
WA 103
only two of the three issues raised by Appellant in his Brief and
Reply Brief submitted to this Court in rendering their decision
on August 2, 1996, when a ruling on that third issue would result
in a different outcome?
3. Did the panel misinterpret Appellant's application of
the Public Interest Exception to the mootness doctrine?
INGLISH & MONACO, P.C.
Jefferson City, MO 65101
Telephone: (573) 634-2522
ATTORNEYS FOR APPELLANT
«3« 104
to again ‘undergo revocation proceedings.” This statement by the
Court goes against the Court's holding in Leonard v. Nix, 55 F.3d
Randy G. Spencer's parole was revoked following a parole
, : 370 (8th Cir. 1995), and the United States Supreme Court's,
revocation hearing on September 24, 1992. In response to this
statements in Honig v. Doe, 484 U.S. 305 (1988), and mistates the
revocation, Appellant filed an Application for Habeas Corpus
argument raised Appellant in both his Brief and Oral Argument.
Relief under 28 U.S.C. Section 2254 on April 1, 1993. Appellant "7
Further, the el deals with the “capable of repitition yet
actively pursued this request for Habeas Corpus Relief and made ee _ pab P Y
evading review" exception to the mootness doctrine in its
numerous attempts to have his pleas heard by the United States
opinion t this standard is not the exception offered b
District Court prior to his release from incarceration. Despite ae, on - P Y
llant hi ief or Oral Ar nt. In fact llant
Appellant's best efforts, delays from Appellees lead to his agpelient in > ae S — , oye
, , ' , expressly stated in his Reply Brief filed March 27, 1996, that he
release from incarceration prior to his Petition for Habeas
: ; did not rely on this standard, rather placing support in the
Corpus relies being heard. On August 23, 1995, United States
public interest exception to the mootness doctrine.
District Court Judge Elmo B. Hunter of the Western District of
l. Is it the panel's opinion that Appellant's return to
Missouri, Western Division, dismissed Appellant's case because
custody is irrelevant as to the future consequences of his
alleged parole violation which was ruled upon at 4
constitutionally flawed parole revocation hearing?
the sentences at issue had expired and because Petitioner was no
longer “in custody” within the meaning of 28 U.S.C. Section
2254(a). On August 2, 1996, a panel of justices of the United 7
, The panel decision erroneously states that Appellant's
States Court of Appeals for the Eighth Circuit issued its
collateral consequences are too speculative to overcome 4 finding
of mootness. In Leonard v. Nix, 55 F.3d 370 (8th Cir. 1995) the
Court stated that “Leonard's return to custody dispenses with any
opinion, affirming the District Court's dismissal of Appellant's
Petition as Moot. In its opinion, the panel failed to comment
upon or base any portion of its ruling upon one of Appellant's
) , doubts that remain about the existence of collateral consequences
three major issues raised in his Brief to the panel.
in this case. Upon his return to ISP, Leonard's inmate status_is
Further, the panel found that there was no “reasonable
, marked by the previous rules violation, and if he commits any
likelihood that Spencer will again be effected by the Board's
further infractions, he faces more severe treatment because of
this prior disciplinary action. Accordingly, Leonard's Petition
for a Writ Habeous Corpus is not moot, and we deny the Motion to
Dismiss on this ground.” In the case at bar, Spencer is
ot 105 1s f": eS 106
parole revocation procedures.” The panel further stated that
“Assuming that Spencer is paroled from his present incarceration,
we will not assume that he will violate his parole terms in order
similiarly marked by his previous parole revocation, a revocation
which should not appear on his record due to the unconstitutional
actions that took place at the parole revocation hearing. The
panel, in its opinion goes so far as to state that, unlike a
criminal conviction, no civil disablities result from a parole
violation finding. See Lane v. Williams, 455 U.S. 624, 632
(1982). Even if it is true that civil disabilities do not result
from a parole violation finding, which Appellant denies,
disabilities within the penal system certainly do exist. Merely
because Appellant is an incarcerated person does not mean that he
should be subjected to disabilities based upon a flawed parole
revocation finding.
The Honorable Justice Heaney, in his concurring opinion went
so far as to state that “It seems clear that Spencer may suffer
collateral consequences as a result of the revocation of his
parole.” To conclude otherwise would be to turn a blind eye to
Appellant's legitimate claims for relief. |
2. Should the three member panel of the United States Court
of Appeals for the Eighth Circuit which heard counsel's argument
in this matter on May 17, 1996, base their opinion on only two of
the three issues raised by Appellant in his Brief and Reply Brief
submitted to this Court in rendering their decision on August 2,
1996, when ruling on that third issue would result in a different
outcome?
In Appellant's Brief to the Court filed February 8, 1996,
Reply Brief filed March 27, 1996, and in Oral Arguments on May
17, 1996, Appellant stressed the contention that his case only
- 6 -
107
became moot due to the actions of Appellee and the District
Court. Those statements made by Appellant in his Brief, Reply
Brief and Oral Argument stressed the injustice of these delays
which was best summed up by the Supreme Court of the United
States in Sibron v. State of New York, 792 U.S. 40, 20 L.Ed.2d
917, 88th S. Ct. (1968) in stating "We do not believe that the
Constitution contemplates that people derived ad constitutional
rights at this level should be left utterly remediless and
defenseless against repetitions of unconstitutional conduct. . .
a state may not effectively deny a convict access to its
Appellate Courts until he has been released and then argued that
his case has been mooted by its failure to do what it alone
prevented him from doing.” Id. at 53.
Failure of this Court to review the issue of undue delays
resulting in ‘Agpellant’e Petition for Habeous Corpus relief
becoming moot, would clearly be an error.
3. Did the panel misinterpret Appellant's application to
the public interest exception to the mootness doctrine?
In its order and opinion filed August 2, 1996, the panel
states on pages 6 and 7 that "To be excepted from the mootness
doctrine, the matter must be ‘capable of repetition yet evading
review' and there must be ‘a reasonable expectation that the
complaining party would be subjected to the same action again.'"
Lane, 455 U.S. at 633-34.
While the statement made by the Court is, in and of itself,
a true statement, it does not accurately reflect the arguments of
Appellants set forth in their Brief, Reply Brief and Oral
+ 4% 108
Argument.
This issue, after being similarly misinterpreted by Appellee
in their Brief to the Court submitted March 7, 1996, was dealt
with in Appellant's Reply Brief on page 4, in which Appellant
stated that "Even a cursory glance of Appellant's Brief filed
February 8, 1996, reveals that Appellant never asserted use of
the capable of repetition yet evading review exception. Rather,
Appellant relies upon the public interest exception to the
mootness doctrine (See Appellant's Brief at page 21-33), which is
both directly on point in the case at hand and fully applicable
to these facts." See Reply Brief of Appellant at page 4.
Under the public interest exception to the mootness
doctrine, Appellant does not have to show a “reasonable
likelihood” that he will be affected by the Board's
unconstitutional parole revocation procedures in the future.
Rather, he need show that an issue is likely to recur though not
necessarily to the same individual; that an application of the
mootness doctrine can repeatedly frustrate review, and that the
issue is one of great public importance. a Vv. s
Inc., 743 P.2d 345 and Junkins v. Branstead, 421 N.W.2d 130.
These items have been continually showed by Appellant throughout
his attempts to have his Petition for Habeous ouewes relief be
declared not moot.
Further, Appellant has established that the centroversy, in
fact, is capable of repetition and has established that it is
reasonably likely that he will be affected by the
unconstitutional practices of the parole revocation board
A 109
—~
throughout his attempts to gain further parole. The Supreme
Court of the United States in Honig v. Doe, 108 S.Ct. 592, 484
U.S. 305, 318 (
This text is long and has been trimmed here. Open the source document for the complete record.
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