Jose Antonio Caban v. United States

1 The Honorable Donald J. Stohr, District Judge for the Eastern District of
Missouri, affirming the order of the Honorable Mary Ann L. Medler, United States
Magistrate Judge.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2661
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Frank Kevin Pool, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Michael Bowersox, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 10, 2001
Filed: February 26, 2002 (Corrected: 03/07/02)
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Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.
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PER CURIAM.
The State of Missouri appeals an order of the district court 1 requiring the State
to respond to a habeas corpus petition filed by Frank Kevin Pool (Pool) pursuant to
28 U.S.C. § 2254. We find the matter moot and dismiss the appeal.

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2 A habeas petition challenging a parole decision is not a second or successive
petition where the petitioner previously challenged his state conviction or sentence.
See Crouch v. Norris, 251 F.3d 720, 724 (8th Cir. 2001).
3 The State cites Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998). In
Carmichael, the district court entered a 90-day stay to permit Carmichael time to
exhaust his state-court remedies, and White appealed the stay order. We found the
stay was a sufficiently final collateral order to warrant review and further found the
district court should have dismissed the habeas petition without prejudice rather than
-2-
On February 5, 1979, Pool entered a guilty plea to the charge of murder in the
first degree in the Circuit Court of Phelps County, Missouri. The court sentenced
Pool to a term of life imprisonment. Nonetheless, the Missouri Board of Probation
and Parole notified Pool in 1994 that he would receive parole release in 1998. In
1997, however, the Parole Board rescinded the parole release date due to Pool's plea
of guilty to a correctional facility conduct violation. Pool filed a habeas petition
pursuant to 28 U.S.C. § 2254 alleging violations of his constitutional rights related
to a mandatory state court filing fee and the rescission of his parole release date.
In a response to an order to show cause why Pool's habeas petition should not
be granted, the State argued the petition should be dismissed as a successive petition
under 28 U.S.C. § 2244(b). Rejecting the State's argument, the magistrate judge
ordered the State to show cause why a writ of habeas corpus should not be granted.2
Ignoring the court's mandate to respond to the merits, the State argued Pool had failed
to exhaust available state remedies. Without resolving the exhaustion issue, the
magistrate judge again ordered the State to respond to the merits. The State appealed
the magistrate judge's order to the district court which affirmed, requiring compliance
with the magistrate judge's order.
On appeal, the State seeks a ruling requiring the district court to determine
whether Pool's claims were exhausted prior to the State having to furnish a response
on the merits.3 The State's argument appears to be foreclosed by Rule 5 of the Rules

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grant the stay. While Carmichael is probably distinguishable from the case before us
now, we need not reach this jurisdictional issue.
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Governing Cases Under 28 U.S.C. § 2254, which requires a response be on the
merits, in addition to a delineation of the exhausted state remedies.
We need not resolve this issue, however, because eight days after filing this
appeal the State filed a response to the magistrate judge's order to show cause and
addressed the merits of Pool's petition. Since the State has submitted the ordered
response, we could grant no effective relief. Therefore, we dismiss the appeal as
moot.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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