                   United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 11-2874
                          ___________________________

                                    Reginald Morgan,

                         lllllllllllllllllllllPetitioner - Appellant,

                                             v.

                                    Laurent D. Javois,

                        lllllllllllllllllllllRespondent - Appellee.
                                        ____________

                       Appeal from United States District Court
                    for the Eastern District of Missouri - St. Louis
                                    ____________

                            Submitted: September 26, 2013
                              Filed: December 16, 2013
                                   ____________

Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
                          ____________

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-in-
time 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,

                                           -4-
      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


                                          -5-
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.




                                         -6-
                                           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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