Thompson v. White, 442 F. Supp. 1269 (E.D. Mo. 1978)

*1270 Douglas W. Thompson, pro se.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Chief Counsel, Crim. Div., Jefferson City, Mo., for respondent.

FILIPPINE, District Judge.

This matter is before the Court upon the application of petitioner for a writ of habeas corpus. Respondent has replied to the show cause order of this Court dated October 25, 1977 and argues that the application should be dismissed for failure to exhaust available state remedies. Respondent has presented exhibits which indicate that petitioner filed a notice of appeal in the Springfield District of the Missouri Court of Appeals prior to filing his petition in this Court. Petitioner argues that the exhaustion requirement of 28 U.S.C. § 2254 is inapplicable due to the delay of almost two years between the time of his filing his 27.26 motion and the date his motion was denied.

The Court is aware of the extreme and unexplained delay which occurred while petitioner's motion was pending in the Circuit Court of Mississippi County. It would appear, however, that the appeal from that order is now proceeding in a timely manner. Moreover, petitioner did not seek relief in this Court until after the adverse ruling of the circuit court had been made and an appeal had been filed. Petitioner is currently pursuing his right to appeal the decision of the circuit court. Accordingly, he cannot be said to have exhausted his available state remedies.