United States Court of Appeals

For the Eighth Circuit

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No. 11-2874

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Reginald Morgan,

lllllllllllllllllllllPetitioner - Appellant,

v.

Laurent D. Javois,

lllllllllllllllllllllRespondent - Appellee.

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 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: September 26, 2013

 Filed: December 16, 2013

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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.

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COLLOTON, Circuit Judge.

Reginald Morgan was acquitted of criminal charges in Missouri state court by

reason of insanity and committed to the custody of Missouri’s Director of Mental

Health. In 2008, he petitioned the district court for a writ of habeas corpus in an effort

to gain release from the state mental institution. The district court dismissed the

petition on the ground that it was second or successive, and thus barred by 28 U.S.C.

§ 2244(b). The State now concedes that the petition was not second or successive
within the meaning of the governing statute, but we affirm the dismissal on the

alternative ground that Morgan procedurally defaulted his claims by failing to exhaust

properly his state remedies.

I.

In 1992, Morgan was charged in Missouri state court with first degree assault,

armed criminal action, and unlawful use of a weapon; he allegedly stabbed a man with

a butcher knife. In March 1994, Morgan was acquitted on the ground of mental

disease or defect excluding responsibility and was committed to the custody of

Missouri’s Director of Mental Health. The court ordered that Morgan 

is not to be released therefrom except on order of this Court upon a

determination through the procedures provided in Section 552.040

Missouri Revised Statutes, 1986, and unless it is determined by the Court

that he does not have and in the reasonable future is not likely to have,

a mental disease or defect rendering him dangerous to the safety of

himself or others or unable to conform his conduct to the requirements

of law.

State v. Morgan, No. 92I-2404, slip op. at 2 (Mo. Cir. Ct. Mar. 15, 1994); see Morgan

v. Lacy, No. 4:05-cv-263-HEA/MLM, 2005 WL 2290578, at *1 (E.D. Mo. Sept. 20,

2005).

In 2004, Morgan applied to the state court for conditional release pursuant to

Missouri Revised Statute § 552.040. See Morgan, 2005 WL 2290578, at *2. After

a hearing, the state court ruled that Morgan failed to meet the statutory requirements

for conditional release, see Mo. Rev. Stat. § 552.040, but granted him partial

conditional release. See Morgan, 2005 WL 2290578, at *2.

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In 2005, Morgan filed a pro se petition for writ of habeas corpus in federal

district court. His petition raised three grounds for relief: (1) his confinement violates

the Fifth, Eighth, Thirteenth, and Fourteenth Amendments to the United States

Constitution; (2) he was told he would be discharged six months after his initial

confinement; and (3) Missouri’s Director of Mental Health was “practicing racial

hate” against him. See id. The district court construed the petition as a challenge to

both the initial commitment order and the decision granting Morgan partial

conditional release. See id. at *4. The district court held that Morgan’s challenges to

the initial commitment order were untimely under 28 U.S.C. § 2244(d), see id., and

that his claims regarding partial conditional release were procedurally defaulted,

because Morgan failed to exhaust properly his state remedies when he neither

appealed the decision nor moved for post-conviction relief in state court. Id. at *4–5. 

The district court concluded, in the alternative, that Morgan’s petition failed to state

grounds for relief on the merits. Id. at *5. Morgan did not appeal.

In October 2008, Morgan filed a second pro se habeas petition in federal district

court. The petition raised as the ground for relief that “respondents keep saying that

[Morgan] is a danger to himself and others if released on conditional discharge,”

although he “is rehabilitated and longterm stay in the hospital is unlawful and

[Morgan’s] illness is in remission.”

In November 2008, before the district court ruled on Morgan’s federal habeas

petition, Morgan filed a new application in state court, this time seeking both

conditional and unconditional release. In January 2009, after a hearing, the state court

denied his application. Morgan timely appealed. In November 2009, the Missouri

Court of Appeals dismissed Morgan’s appeal on procedural grounds. Morgan filed

an application requesting transfer of his appeal to the Missouri Supreme Court, but

that application was stricken as untimely. 

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In August 2011, the district court dismissed Morgan’s October 2008, second-intime habeas petition on the ground that it was “successive” within the meaning of 28

U.S.C. § 2241(b)(1), and therefore barred by statute. See Morgan v. Javois, No. 4:08-

cv-1601-TIA, 2011 WL 3715114, at *1 (E.D. Mo. Aug. 24, 2011). The court also

ruled in the alternative that even if the petition were not successive, it failed to state

a constitutional claim that was cognizable in a federal habeas petition. Id.

In October 2012, this court granted a certificate of appealability on two issues: 

(1) whether Morgan’s October 2008 petition is successive, and (2) whether his

petition states a cognizable claim under Foucha v. Louisiana, 504 U.S. 71 (1992). 

II.

A.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

provides that “[a] claim presented in a second or successive habeas corpus application

. . . shall be dismissed” except under certain, narrow circumstances. 28 U.S.C.

§ 2244(b). The district court dismissed the October 2008 petition as successive, but

the State now concedes that this ruling was error. In Panetti v. Quarterman, 551 U.S.

930 (2007), the Supreme Court eschewed a literal reading of § 2244(b) and reasoned

that the prohibition on “second or successive” petitions does not foreclose a second

petition that raises a claim that was “unripe” at the time of the first federal habeas

petition. Id. at 943–45. In Panetti, the Court considered a claim of mental

incompetence that precluded execution in a capital case. See Ford v. Wainwright, 477

U.S. 399, 410 (1986). The Court explained:

In the usual case, a petition filed second in time and not otherwise

permitted by the terms of § 2244 will not survive AEDPA’s “second or

successive” bar. There are, however, exceptions. We are hesitant to

construe a statute, implemented to further the principles of comity,

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finality, and federalism, in a manner that would require unripe (and,

often, factually unsupported) claims to be raised as a mere formality, to

the benefit of no party.

Panetti, 551 U.S. at 947. Before Panetti, this court similarly had allowed a second

federal habeas petition to proceed when it raised a parole-related claim that the

petitioner could not have raised in his first habeas petition. Crouch v. Norris, 251

F.3d 720, 725 (8th Cir. 2001); see also Pennington v. Norris, 257 F.3d 857, 858 (8th

Cir. 2001).

Morgan’s second petition does not challenge the validity of his acquittal or his

initial commitment; rather, he challenges his continued confinement. See Revels v.

Sanders, 519 F.3d 734, 740 (8th Cir. 2008). Just as a claim that mental incompetence

precludes execution is unripe until execution is imminent, see Stewart v.

Martinez–Villareal, 523 U.S. 637, 644–45 (1998), and a parole-related claim is unripe

until after the parole hearing, see Crouch, 251 F.3d at 725, a challenge to a state-court

decision regarding the legality of an insanity acquittee’s continued confinement is

unripe until that decision is rendered. We therefore agree with the parties that

Morgan’s October 2008 habeas petition is not barred as “second or successive” within

the meaning of AEDPA.

B.

Morgan’s habeas petition, however, faces a second procedural difficulty. When

a habeas petitioner defaults his federal claims in state court pursuant to an independent

and adequate state procedural rule, federal habeas review of his claims is barred unless

he “can demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722,

750–51 (1991). Procedural default is a matter that federal courts may raise on their

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own initiative in appropriate circumstances. See Day v. McDonough, 547 U.S. 198,

206–07 (2006).

When Morgan filed his second-in-time habeas petition in October 2008, he had

not yet begun to exhaust his state remedies. Before the district court ruled on his

petition, Morgan began to exhaust his state remedies by applying for conditional and

unconditional release in state court. Morgan then defaulted his federal claims,

however, by failing to file an appellate brief in state court, as required by Missouri

Supreme Court Rule 84.05(a). The Missouri Court of Appeals dismissed his appeal

on that basis, and Morgan does not dispute that Missouri’s procedural requirement is

firmly established and regularly followed, see James v. Kentucky, 466 U.S. 341, 348

(1984), or contend that the state-law ground for decision is otherwise inadequate. See

Lee v. Kemna, 534 U.S. 362, 376 (2002).

Morgan’s procedural default eliminated any remaining state remedies that were

available to him, thus technically satisfying AEDPA’s requirement that he exhaust

state remedies. See 28 U.S.C. § 2254(b)(1)(A); Engle v. Isaac, 456 U.S. 107, 125 n.28

(1982). But the procedural bar under state law prevents federal habeas review of his

federal claims unless he can demonstrate cause and prejudice or a miscarriage of

justice. See Gray v. Netherland, 518 U.S. 152, 161–62 (1996); Murray v. Carrier,

477 U.S. 478, 496 (1986). Morgan makes no attempt to meet those

standards—“perceived futility alone cannot constitute cause,” Engle, 456 U.S. at 130

n.36—so the habeas petition was properly dismissed. It is therefore unnecessary to

address Morgan’s argument on the merits that the state-court decision contravened

Foucha.

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C.

While this appeal was pending, we were advised that Morgan has again applied

to the state court for conditional and unconditional release. In June 2013, after a

hearing, a Missouri circuit court denied Morgan’s application. Morgan timely

appealed, and the case is pending before the Missouri Court of Appeals.

If, after exhausting state remedies, Morgan believes that the adjudication of his

present claims for release gives rise to a basis for relief under federal law, then he may

file another federal habeas petition in the district court to challenge his continued

confinement as of 2013. The State acknowledged at oral argument that, in light of

Panetti and Crouch, such a petition would not be barred as “second or successive”

within the meaning of AEDPA.

* * *

The judgment of the district court is affirmed.

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