Frank Howard, Appellant, v. Harold R. Swenson, Warden, Missouri State Penitentiary, Appellee, 441 F.2d 256 (8th Cir. 1971)

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US Court of Appeals for the Eighth Circuit - 441 F.2d 256 (8th Cir. 1971) April 15, 1971

Frank Howard, filed brief pro se.

John C. Danforth, Atty. Gen. and Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., filed brief for appellee.

Before VAN OOSTERHOUT and HEANEY, Circuit Judges, and HANSON, District Judge.


Frank Howard appeals in forma pauperis from the district court's denial without a hearing of his petition for a writ of habeas corpus for failure to exhaust his state remedies.

Howard is a state prisoner incarcerated in the Missouri State Penitentiary. He does not attack the legality of his conviction or confinement in this action. His petition relates to alleged illegal restrictive confinement as well as other complaints about the treatment he is receiving including conditions of confinement.

Petitioner has filed habeas corpus petitions presenting his complaints in the Missouri trial court as well as the Supreme Court of Missouri. These petitions were dismissed without opinion as failing to state a claim upon which relief could be granted.

Petitioner's complaint clearly relates to conditions of his confinement which are not so unreasonable as to constitute cruel and unusual punishment. See, Harris v. Settle, 322 F.2d 908 (8th Cir. 1963). A recent case in this Circuit has held that before presenting these types of claims to the federal courts by means of federal habeas corpus, a prisoner in the Missouri State penitentiary must exhaust available remedies provided by the State of Missouri. Wilwording v. Swenson, 439 F.2d 1331 (8th Cir. 1971).

The judgment of the District Court is affirmed.