                                   ___________

                                   No. 95-1466
                                   ___________

Larry Wayne,                             *
                                         *
             Appellant,                  *
                                         *   Appeal from the United States
        v.                               *   District Court for the
                                         *   Eastern District of Missouri.
Missouri Board of Probation and          *
Parole; Paul Caspari,                    *
                                         *
             Appellees.                  *


                                   ___________

                      Submitted:   November 16, 1995

                          Filed:   May 15, 1996
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and
      FAGG, Circuit Judge.

                                   ___________

HENLEY, Senior Circuit Judge.


        Larry Wayne filed this federal petition for habeas corpus under 28
U.S.C. § 2254 alleging that the Missouri Board of Probation and Parole
(through     its   Chairman,   Paul    Caspari)   had   violated   his   federal
constitutional rights in denying his application for parole from custody
on a Missouri state conviction.       Pursuant to 28 U.S.C. § 636(b), the case
was referred to a United States Magistrate Judge who issued a report and
recommendation finding that the petition should be dismissed on the theory
that Wayne had failed to exhaust his state remedies as required by 28
U.S.C. §§ 2254(b) and (c).     The district court adopted the recommendation
of the magistrate judge and the petition was ordered dismissed without
prejudice.   Wayne filed a timely notice of appeal pursuant to 28 U.S.C. §
2253.    We reverse and remand for further proceedings.
BACKGROUND
     Petitioner Wayne is serving a life sentence on a 1976 Missouri
conviction for murder in the second degree.      See Wayne v. Missouri, 579
S.W.2d 780 (Mo. App. 1979).   He was eligible for parole in February 1993
but parole was denied by the Missouri Board of Probation and Parole.      The
parole board stated that it was denying parole "in its discretion" on
grounds that to allow Wayne to be paroled would "depreciate the seriousness
of the offense committed and/or promote disrespect for the law."


     Wayne objected that neither the parole statute nor implementing
regulations in effect at the time of his sentencing included the above-
quoted language as a basis for denying parole,       see R.S. Mo. § 549.261
(1978), but that regulations promulgated under a later-enacted statute now
in effect do include such language.    See R.S. Mo. § 217.690 (1986).   Wayne
immediately went into Missouri state court and filed a state petition for
habeas corpus on grounds that he was being denied his state and federal
constitutional rights by having the wrong parole statute and regulations
applied to his parole application.


     The state trial court denied the petition on its merits, ruling that
Wayne had no protectible liberty interest in parole or the application of
any particular parole regulations and therefore no basis to contest the
denial of parole.    The decision of the state trial court discussed no
procedural or jurisdictional defects in the habeas petition.       Wayne v.
Missouri Bd. of Probation & Parole, No. 93-6506 (Circuit Court of St. Louis
County) (May 13, 1993).   The Missouri Supreme Court    summarily affirmed.
State ex rel. Larry Wayne v. Missouri Bd. of Probation & Parole, No. 93-
75924 (Mo., June 29, 1993).


     Wayne then filed this petition for habeas corpus in federal district
court.   The State of Missouri opposed the petition on grounds that it was
premature because Wayne had allegedly failed to




                                      -2-
exhaust his state remedies.      The State contended that the state habeas
proceedings already completed were not the appropriate procedure for Wayne
to challenge his parole denial in state court.     Instead, the State urged
that the only procedure whereby Wayne could raise his claim that the Parole
Board had applied the wrong law to his case was by means of a declaratory
judgment action against the Missouri Board of Probation and Parole.
Because Wayne had not filed a state declaratory judgment action but had
instead filed a state habeas corpus action, the State argued that his
federal habeas corpus suit must be dismissed.


     The United States magistrate judge adopted the State's theory on
exhaustion of state remedies and recommended that Wayne's federal habeas
petition be dismissed to allow him to first file a declaratory judgment
action in state court.     Wayne objected to this recommendation on grounds
that he had already exhausted his state remedies by presenting his claims
to the Missouri trial court and supreme court which had ruled on the merits
of his claims.    The district court overruled these objections, adopted the
report of the magistrate judge, and dismissed the federal habeas petition.


     On this appeal, Wayne raises two issues.    First, Wayne contends that
the district court erred by holding that he had failed to exhaust his state
court remedies.   Wayne argues that it is far from clear that a declaratory
judgment action is the only appropriate procedure to challenge a parole
denial in Missouri.    In any event, he urges that the exhaustion doctrine
does not require him to present his claims to the Missouri state courts a
second time when those courts have already denied the same claims on the
merits.   Second, Wayne contends that the Parole Board erred as a matter of
law in applying the wrong standard to his application for parole.     Wayne
thus says that he is entitled under Eighth Circuit and Missouri precedents
to a new parole hearing.




                                     -3-
EXHAUSTION OF STATE REMEDIES
     The federal habeas statute requires persons in state custody who seek
federal habeas relief to first exhaust available state remedies.1 This
requirement is based on the principle that "as a matter of comity, federal
courts should not consider a claim in a habeas corpus petition until after
the state courts have had an opportunity to act."   Rose v. Lundy, 455 U.S.
509, 515 (1982).   "The purpose of exhaustion is not to create a procedural
hurdle on the path to federal habeas court, but to channel claims into an
appropriate forum, where meritorious claims may be vindicated and unfounded
litigation obviated before resort to federal court."     Keeney v. Tamayo-
Reyes, 504 U.S. 1, 10 (1992).       "It follows, of course, that once the
federal claim has been fairly presented to the state courts, the exhaustion
requirement is satisfied."     Vasquez v. Hillery, 474 U.S. 254, 257 (1986)
(quoting Picard v. Connor, 404 U.S. 270, 275-76 (1971)).


     Petitioner Wayne contends on this appeal that, having presented his
federal claims in one complete round of litigation before the Missouri
trial court and the Missouri supreme court (on petition for state habeas
corpus), the exhaustion doctrine does not require him to relitigate those
same claims before the Missouri courts using a different procedural device
(an action for




     1
      28 U.S.C. § 2254 provides in relevant part:

     (b) An application for a writ of habeas corpus in behalf
     of a person in custody pursuant to the judgment of a
     State court shall not be granted unless it appears that
     the applicant has exhausted the remedies available in the
     courts of the State, or that there is either an absence
     of available State corrective process or the existence of
     circumstances rendering such process ineffective to
     protect the rights of the prisoner.

     (c) An applicant shall not be deemed to have exhausted
     the remedies available in the courts of the State, within
     the meaning of this section, if he has the right under
     the law of the State to raise, by any available
     procedure, the question presented.

                                     -4-
declaratory judgment).    We agree.


     We find the State's argument that Wayne should be forced to return
to the Missouri courts unavailing for two principal reasons.
First, our review of the Missouri case law does not support the State's
assertion that Missouri law is clear that the only appropriate manner in
which to bring a challenge to a parole denial is by action for declaratory
judgment.   Second, and more importantly, we believe that the exhaustion
requirement has been fully satisfied in this case by Wayne's prior attempts
to gain relief in state court.


     On the issue of what procedural device should be used to challenge
a parole denial in Missouri, Missouri law appears to sanction several
options.    First, Missouri Supreme Court Rule 87.02(c) provides that the
validity or application of a State agency's rules may be tested in a
declaratory judgment action filed against the relevant agency.2 The State
contends that the Missouri Board of Probation and Parole is one such state
agency and that its application of parole regulations may be challenged in
a declaratory judgment action.   In at least two recent cases the Missouri
courts have implicitly approved the use of a declaratory judgment action
to contest parole denial by proceeding to rule on the merits of the claims.
See, e.g., Cooper v. Missouri Bd. of Probation & Parole, 866 S.W.2d 135
(Mo. 1993) (en banc) (summary judgment for Parole Board in declaratory
judgment action affirmed on grounds denial of parole did not violate
constitutional rights),




     2
      Missouri Supreme Court Rule 87.02 provides in relevant part:

     (c)   Declaratory Judgment in Respect to Agency Rules.
     The power of the courts of this state to render
     declaratory judgments shall extend to declaratory
     judgments respecting the validity of agency rules, or of
     threatened applications thereof, and such suits may be
     maintained against agencies whether or not the plaintiff
     has first requested the agency to pass upon the question
     presented.

                                      -5-
cert. denied, 114 S. Ct. 2718 (1994); McKown v. Mitchell, 869 S.W.2d 765
(Mo.   App.   1993)    (summary    judgment   for   chairman   of   Parole   Board    in
declaratory judgment action affirmed on grounds that prisoner did not have
a protectible liberty interest in parole on the facts).


       Second, other recent Missouri cases suggest that a challenge to a
parole decision may also be brought by means of a state petition for habeas
corpus under Missouri Supreme Court Rule 91.01.3 See, e.g., Shields v.
Purkett, 878 S.W.2d 42 (Mo. 1994) (en banc) (on petition for writ of habeas
corpus after parole denial, writ of mandamus issued to Parole Board to hold
new parole hearing under correct statute and regulations); Mitchell v.
Dalton, 831 S.W.2d 942 (Mo. App. 1992) (review of parole denial not
appropriate    under    Missouri    Administrative    Procedure     Act   but   may   be
available on petition for habeas corpus or in a declaratory judgment
action).   Cf. Brown v. Missouri Bd. of Probation & Parole, No. 68,353 (Mo.
Sept. 16, 1986) (petition for habeas corpus denied on merits of claim that
cancellation of previously announced but unexecuted parole release violated
constitution).   Cf. also Smith v. Missouri, 741 S.W.2d 727 (Mo. App. 1987)
(petition for habeas corpus rather than postconviction motion held proper
means to challenge incarceration after parole revocation).4




       3
       Missouri Supreme court Rule 91.01 provides in relevant part:

       Who May Petition for a Writ of Habeas Corpus -- Form of Action

       Any person restrained of liberty within this state may
       petition for a writ of habeas corpus to inquire into the
       cause of such restraint. . . .
       4
      For a thorough discussion of the interplay of habeas corpus
and declaratory judgment actions in Missouri, see the opinion of
Judge Oliver in Brown v. Missouri Bd. of Probation & Parole, 727 F.
Supp. 524 (W.D. Mo. 1989) (challenge to cancellation of previously
announced but unexecuted parole decision properly brought in state
habeas corpus action; State contention that petitioner had not
exhausted his state remedies because he filed a petition for habeas
corpus rather than a declaratory judgment action rejected).

                                         -6-
     Finally, there are also several Missouri cases where relief from
parole denial has been either sought or granted by means of a writ of
mandamus to the Parole Board pursuant to Missouri Supreme Court Rule 94.5
See, e.g., Cavallaro v. Groose, 908 S.W.2d 133 (Mo. 1995) (en banc) (on
petition for mandamus the court considered the merits of prisoner's claim
that he was denied parole in violation of law); Shields v. Purkett, 878
S.W.2d 42 (Mo. 1994) (en banc) (writ of habeas corpus denied but writ of
mandamus issued to parole board on prisoner's claim that parole denial
violated law); Williams v. Gammon, 912 S.W.2d 80 (Mo. App. 1995) (petition
for writ of mandamus after parole denial considered on the merits).


     In light of these Missouri cases, we cannot agree with the State's
contention here that a declaratory judgment action is the exclusive means
for challenging parole denial in Missouri; the Missouri courts have simply
not so held.    Accordingly, we decline to find that the Missouri courts
which ruled on Wayne's state petition for habeas corpus acted without
jurisdiction.    We leave to the able courts of Missouri any further
clarification or change in the status of its law.     For present purposes,
we conclude only that petitioner Wayne's state petition for habeas corpus
appears to have been an accepted means of contesting his parole denial.


     In any event, as Wayne points out, the Missouri trial court clearly
ruled on the merits of his state and federal constitutional claims, finding
that he had no protectible interest in parole.   There is no indication in
the trial court's memorandum opinion that its denial of Wayne's request for
relief was on procedural or jurisdictional grounds.    Similarly, there is
no indication, nor any




     5
      Missouri Supreme Court Rule 94.03 provides in relevant part:

     Application for a writ of mandamus shall be made by
     filing a petition in mandamus in the appropriate court.
     The petition in mandamus shall contain a statement of the
     facts, the relief sought, and a statement of the reasons
     why the writ should issue.

                                   -7-
argument by the State, that any procedural or jurisdictional objection to
the state petition for habeas corpus was raised in the Missouri supreme
court    which    summarily   affirmed   the   trial   court's   order.      In   such
circumstances, we believe that the only reasonable interpretation of the
Missouri courts' actions is that they rejected Wayne's petition on the
merits.    Cf. Weekley v. Jones, 927 F.3d 382, 386 (8th Cir. 1991).


        Having thus presented his federal constitutional claims to the
Missouri circuit and supreme courts, we do not believe that either the
exhaustion doctrine or the policy of comity which underlies it requires
Wayne to present his claims again to the Missouri courts.                 All that is
required to satisfy the exhaustion doctrine is that the federal claims be
fairly presented to the state courts in one full round of litigation.
Kolocotronis v. Holcomb, 925 F.2d 278 (8th Cir. 1991) (federal district
court order of dismissal for failure to exhaust state remedies reversed;
petitioner seeking release from state hospital need only present claims to
state courts in one full round of litigation).         Raising a claim in one full
set of proceedings exhausts it, even if other state remedies remain
available.       See, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 800 n.1 (1991)
(prisoner exhausted his federal claim by presenting it on direct appeal and
was not required to pursue state habeas corpus); Castille v. Peoples, 489
U.S. 346, 350 (1989) (once the state courts have ruled on a claim on direct
review, it is not necessary for petitioner to ask for collateral review of
the same claim); Wilwording v. Swenson, 404 U.S. 249, 250 (1971) ("Section
2254 does not erect . . . successive barriers to the invocation of federal
habeas corpus.").       And comity interests are satisfied so long as state
courts have had an opportunity to redress petitioner's claims.             See, e.g.,
Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992) (exhaustion doctrine, founded
on comity concerns, affords the state a full and fair opportunity to
address the federal claims on the merits); Coleman v. Thompson, 501 U.S.
722, 731 (1991) (states should have first opportunity to address violations
of state




                                         -8-
prisoner's federal rights).


MERITS OF WAYNE'S CLAIM
        Because    neither   the   magistrate   judge   nor   the   district   court
considered the merits of Wayne's claims, we decline the petitioner's
invitation to rule that he has a protectible liberty interest in parole
which was denied by the application of the wrong parole statute and
regulations.       This issue has a long and complicated history both in our
        6
court       and in the Missouri courts7. We believe it prudent to allow the
district court to develop the record and address petitioner's claims on the
merits before we offer any opinion on the matter.


        For the reasons stated above, the judgment of the district court is
reversed and the case is remanded for further proceedings


            6
        Based on the Supreme Court's decision in Greenholtz v.
Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1
(1979), we held in Williams v. Missouri Bd. of Probation & Parole,
661 F.2d 697 (8th Cir. 1981), cert. denied, 455 U.S. 993 (1982),
that the mandatory language in Missouri's former parole statute, R.
S. Mo. § 549.261 (1978), created in Missouri prisoners sentenced
under that statute a liberty interest in parole release protected
by due process considerations. In response, Missouri adopted a new
statute with discretionary rather than mandatory language. R.S.
Mo. § 217.690 (1986). We have discussed the issue of the Missouri
parole board's application of the language of the new statute to
prisoners sentenced under the old statute in several subsequent
decisions.   See, e.g., McCall v. Delo, 41 F.3d 1219 (8th Cir.
1994), cert. denied, 115 S. Ct. 2623 (1995); Parton v. Armontrout,
895 F.2d 1214 (8th Cir.), cert. denied, 498 U.S. 879 (1990);
Maggard v. Wyrick, 800 F.2d 195 (8th Cir. 1986). cert. denied, 479
U.S. 1068 (1987); Burnside v. White, 760 F.2d 217 (8th Cir.), cert.
denied, 474 U.S. 1022 (1985).
        7
      The Missouri Supreme Court has addressed the problems created
by the parole board's application of the current statute to
prisoners sentenced under the previous statute in two recent en
banc decisions, Cavallaro v. Groose, 908 S.W.2d 133 (Mo. 1995) (en
banc) (no new hearing required where old and new statutes would
lead to same parole decision); Shields v. Purkett, 878 S.W.2d 42
(Mo. 1994) (en banc) (new hearing required under parole statute in
effect at time of offenses). For a cogent synthesis of Cavallaro
and Shields, see Williams v. Gammon, 912 S.W.2d 80 (Mo. App. 1995).

                                        -9-
not inconsistent with this opinion.


     A true copy.


           Attest:


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




                                 -10-
