
    UNITED STATES of America ex rel. Melvin Leroy TYLER, Petitioner, v. STATE OF MISSOURI, Respondent.
    No. 77-958C(4).
    United States District Court, E. D. Missouri, E. D.
    Sept. 19, 1977.
    Melvin Leroy Tyler pro se.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Chief Counsel Jefferson City, for respondent.
   MEMORANDUM

FILIPPINE, District Judge.

Petitioner, Melvin Leroy Tyler, a prisoner of the State of Missouri, commenced this action in forma pauperis to vacate a sentence imposed in the Circuit Court of Platte County, Missouri. The action is based upon 28 U.S.C. § 2254.

Petitioner alleges that the appointment of the trial judge in his case violated the due process and equal protection clauses of the Fourteenth Amendment. Petitioner sought to challenge this appointment process by a writ of prohibition filed with the Supreme Court of Missouri subsequent to his conviction. This action was without opinion.

Under Missouri law, prohibition is an extraordinary remedy, not a writ of right, and does not lie for grievances which may be adequately redressed in the ordinary course of a judicial proceeding. Knisley v. State, 448 S.W.2d 890 (Mo.1970). Prohibition is, by its nature, a preventative rather than a corrective remedy. State, ex rel. Cervantes v. Bloom, 485 S.W.2d 446 (Mo.Ct.App.1972). Prohibition is clearly no substitute for direct appeal or state post-conviction proceedings.

Available state remedies must be exhausted prior to the granting of federal habeas corpus relief. 28 U.S.C. § 2254(b) and Tyler v. Swenson, 527 F.2d 877, 880 (8th Cir. 1976). The dismissal of Petitioner’s writ of prohibition by the Missouri Supreme Court without opinion cannot be said to have been a decision upon the merits. Petitioner does not claim to have sought either direct review by appeal or state post-conviction relief. Petitioner has, therefore, failed to exhaust his available state remedies.

Therefore, Petitioner’s motion to vacate sentence will be denied and this action will be dismissed.  