Jones v. Solem
Opinion of the Court
Donna Jones, a state prisoner, appeals from the denial of her petition for habeas
I.
In November 1981 a jury convicted Jones of aiding and abetting in the distribution of a controlled substance. She received a ten-year prison sentence and a $10,000 fine. Following her trial, Jones told her trial counsel she wanted to appeal the conviction, but he advised her that it would be a waste of his time and her money.
After serving nearly a year of her sentence, Jones retained counsel to petition for state post-conviction relief. Counsel filed the petition on October 13, 1982, alleging ineffective assistance of counsel. Two months later, the Circuit Court for the Seventh Judicial Circuit of South Dakota held an evidentiary hearing on the petition and took the matter under' advisement. The Circuit Court took no further action until November 22, 1983, when it issued a memorandum decision denying Jones’s claim. The Court did not enter an appealable order to that effect until January 4, 1984.
On December 23, 1983, between the issuance of the memorandum opinion and entry of the final order, Jones filed the present petition for federal habeas corpus. She argued that, because of the state court’s delay in ruling on her post-conviction motion, the federal court should ignore the usual exhaustion requirement. In an order dated January 9, 1984, the District Court denied habeas relief, noting that an appealable order had been entered, and that the State Supreme Court could therefore review the issues Jones raised in her petition. On January 17, Jones filed a notice of appeal to the South Dakota Supreme Court.
n.
Jones points out that under 28 U.S.C. § 2254(b) state prisoners are not required to exhaust state remedies if circumstances exist which render the available state corrective process “ineffective to protect the rights of the prisoner.” She contends that, in all likelihood, the South Dakota Supreme Court will not decide her appeal before she becomes eligible for parole in May 1985,
Nor does the fact that appellant may be paroled before the Supreme Court rules on the merits of her claim justify excusing the exhaustion requirement. Jones’s challenge to the validity of her conviction will not be rendered moot by her release on parole. Her parole could later be revoked, and the conviction might have collateral consequences in the future. See Clemmons v. United States, 721 F.2d 235, 237 n. 3 (8th Cir. 1983). A person on parole is still “in custody” for purposes of federal habeas jurisdiction.
Affirmed.
. The Hon. Andrew W. Bogue, Chief Judge, United States District Court for the District of •South Dakota.
. Both Jones and the State have filed briefs in the appeal now pending before the South Dakota Supreme Court. In its brief, the State concedes that Jones did not knowingly and intelligently waive her right to appeal her conviction to the Supreme Court, and suggests that the case be remanded to the Circuit Court for resentencing to give her an opportunity to perfect her direct appeal.
. ' Appellant’s attorney has compiled information indicating that criminal • appeals in the State Supreme Court generally take between ten and fifteen months to process.
. Jones urges this Court to adopt the position taken in Moore v. Egeler, 390 F.Supp. 205 (E.D. Mich. 1975). In that case, Moore’s conviction for larceny was affirmed on direct appeal, but the Michigan Supreme Court later granted him leave to appeal to raise a new issue. Rather than schedule a hearing, however, the Supreme Court twice ordered Moore's case held in abeyance pending decisions in other cases. After his
. However,' in several cases where petitioners have not obtained any state-court ruling on post-conviction motions after inordinate delay, this Court has remanded to the District Court with directions to consider the habeas petition on the merits if the state court still has not rendered a decision within a stated period of time. See, e.g., Pool v. Wyrick, 703 F.2d 1064 (8th Cir. 1983) (per curiam) (no ruling on post-conviction motion after nearly three years); Wade v. Lockhart, 674 F.2d 721 (8th Cir. 1982) (no decision on post-conviction motion after more than two years).
. In Mucie, the State did not file a response to petitioner’s motion for post-conviction relief for nearly a year, and the State court did not pass on the motion for over thirty months. In addition, the. Missouri Supreme Court had already ruled that Mucie did not have standing to raise the statutory challenge that was the basis of his claim.
Reference
- Full Case Name
- Donna JONES, a/k/a Donna Oien v. Herman SOLEM, Warden, South Dakota State Penitentiary, and Mark V. Meierhenry, Attorney General, State of South Dakota
- Cited By
- 8 cases
- Status
- Published