# Appendix — Spencer v. Kemna > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0089%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1 ## Text te . 5 ) 5 @E-Tis 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 = § (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 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 ..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 » ! : mm) (4) vw ; | as ¢ j i } H ae, 4% rf ; ./ . pfiN yea % 7? AG a7 grt & ‘6 if mf ’ | | en e19 COL t Lesisieds OUuS O09 OO MS CEIVEIS 12 14 1970 hE TURING O02 22 1992 KON- M4X3 10 16 179% UISC GLNT STATS eCilve bisc - ’ - THKOITIOD: NOTTS ose | GO ? CRESS TESS ‘i 6 “ ets ak fn! “> SOROS? O WOICS 2 JALL. $ CREO TEL: TYPE $ LATTES COULS 2° ’ 'ge" » @et @e = 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 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 =- ~| 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 - bbe wipe and ry Legal Court! Laz (aur haunt SEP 2 11992 INS1. PAROLE OFFICE FRoe to Yn 4 WAI RECEW.. I-2Y-9%2 and dnd (en MY OY, AS. 4 A Aum : ay Va 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 4 °c CromAnn oon) mm vir n 7) tn'nnis. Boo.4 7 rr ad, asl ' — it £ a O+:4u tat tae ei ae Pn oa a2 i ° NATL al 7 *. C) satisractory _SZonsariseactony 9 Oat aie 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 . >. > . 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- 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 re [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0089%3A03. Public record. Not legal advice.