### The Honorable Ca rol E. Jackson, United States District Judge 1 

### for the Eastern District of Missouri, adopting the report an d reco mmendations of the Honorable Thomas C. Mummert, III, Unite d States Magistrate Judge for the Eastern District of Missouri.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-1891

___________ Cyril Athana Kolocotronis, * * Appellant, * * v. * Appeal from the United States * District Court for the Steve Reeves; Missouri * Eastern District of Missouri. Department of Mental Health; * State of Missouri, * [UNPUBLISHED] * Appellees. *

___________ Submitted: March 6, 1997 Filed: March 28, 1997

___________ Before WOLLMAN, MAGILL, and HANSEN, Circuit Judges.

___________ PER CURIAM. Cyril Athana Kolocotronis appeals from the district court's denial 1 of his 28 U.S.C. § 2254 habeas corpus petition challenging his continued hospitalization at a state hospital under a 1960 commitment. We affirm.

In 1960 a jury found Kolocotronis not guilty by reason of insanit y of assault with intent to ravish, and the Circui t Court of the City of St. Louis committed him to Fulton State Hospital (Fu lton) "until he shall have been legally adjudged sane."

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Hospital records indicated that in March 1961, the Fulton superintendent noted that Kolocotron is's aunt was making efforts to transport him to the Montan a state hospital, that Kolocotronis was diagnosed as a chroni c schizophrenic, and that he was in need of furthe r institutional treatment. On April 2 4, 1961, Kolocotronis was "discharged to the custody of hi s aunt," who was to transport him to the Montana state hospital. From the trail of state criminal and civil commitment cases, it is apparen t Kolocotronis was in a nd out of hospitals in Montana and Washington during the 1960s and 1970s. See, e.g. , In re Big Cy Kolocotronis , 660 P.2d 731, 733 (Wash. 1983); State v. Kolocotronis , 436 P.2d 774, 777 (Wash. 1968); Inre Kolocotronis , 402 P.2d 977, 977 (Mont. 1965) (per curiam). In May 1982, Kolocotronis was released at his request from a Washington stat e hospital on condition that he be returned to Ful ton for treatment pursuant to his 1960 commitment. See In re Big Cy Kolocotronis , 660 P.2d at 733.

Inthe instant habeas petition, filed in 1993, Kolocotronis argue d that the Missouri Dep artment of Mental Health (MDMH) could no longer hold him because the state lost jurisdiction over him when they released him in 1961, and commitment to Fulton in 1982 was made pursuant to a Washington court order. The state, acknowledging that Kolo cotronis had exhausted his stat e remedies, responded that the record evidence showed tha t Kolocotronis's 1961 d ischarge was conditional, not general. The district court agreed with the state and denied the section 2254 petition.
Under Missouri law at the time of Ko locotronis's initial commitment, the relea se of an insanity acquittee was within the judgment of th e superintendent of MDMH. See Richey v. Baur , 298 S.W.2d 445, 447 (Mo. 1957 ) (en banc). The law also provided that "[a]ny patient admitted may b e discharged or paroled whenever in the judgment of the superintendent and his staff he should be discharged or paroled." Mo. Rev. Stat. § 202.070 (1959) (repealed 1979). We conclude that the superintendent’s discharge was made

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pursuant to the option to parole an insanity acquittee and that such optio n could be construed as a conditional discharge. Cf. State v. Brinkley , 193 S.W.2d 49, 58 (Mo. 1946) (parole is conditional release from physica l custod y, but sentence remains in force and prisoner continues i n constructive custody).
We conclude that Kolocotronis has not shown that the superinten dent's discharge was unconditional, nor has he shown that the superintendent coul d not re assert his control over Kolocotronis in 1982 when Washingto n condit ionallyreleased Kolocotronis to Fulton. Thus, we affirm th e district court's denial of habeas relief. See Beavers v. Lockhart , 75 5 F.2d 657, 662 n.3 (8th Cir. 1985) (burden on habeas corpus petitioner to establish that he is entitled to relief).

To the ext ent that Kolocotronis is arguing that he is not no w suffering from a ment al disease or defect, Kolocotronis may avail himself of the mechanism prov ided in section 552.040 and petition the state court for release. See Sta te ex rel. Hoover v. Bloom , 461 S.W.2d 841, 842 (Mo. 1971) (en banc) (prov isions of section 552.040 are remedial in nature and
can be applied to insanity acquittees committed before statute' s enactment); Cyronne-DeVirgin v. Missouri , 341 F.2d 568, 570 (8th Cir.) (pe r curiam) (remedies under section 552.040 available and required befor e petitioner could pursue habeas relief), cert. de nied , 382 U.S. 895 (1965).
Accordingly, we affirm. We overrule Kolocotronis's objection to the no-argument determination.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.