United States District Court, W.D. Oklahoma
JAMES D. LEWIS, Plaintiff,
OKLAHOMA PARDON & PAROLE BOARD, et al., Defendants.
Charles B. Goodwin, United States District Judge.
matter comes before the Court for review of the Report and
Recommendation (Doc. No. 10) issued by United States
Magistrate Judge Bernard M. Jones pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Plaintiff, a state prisoner
appearing pro se, brought this action under 42 U.S.C. §
1983 alleging that Oklahoma's parole scheme violated his
constitutional rights. See Compl. (Doc. No. 1).
Jones has recommended that Plaintiff's action be
dismissed on screening for failure to state a claim upon
which relief can be granted. See R. & R. at 5;
28 U.S.C. § 1915A(b)(1). On February 22, 2019, Plaintiff
filed a timely objection to the Report and
Recommendation. See Pl.'s Obj. to R. & R.
(Doc. No. 11). Plaintiff's objection triggers de novo
review by this Court of those portions of the Report and
Recommendation to which objection is made. See,
e.g., United States v. 2121 E. 30th St., 73
F.3d 1057, 1060 (10th Cir. 1996); 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(3). Issues or claims raised for the first
time, however, are waived. Marshall v. Chater, 75
F.3d 1421, 1426 (10th Cir. 1996).
primary claim is predicated on the following facts: At the
age of fourteen, he was sentenced to life with the
possibility of parole on a charge of first-degree murder.
Compl. ¶ 14. He has since been considered for-and
denied-parole a total of six times without being afforded an
“opportunity to demonstrate maturity and
rehabilitation.” Id. ¶ 19. Plaintiff
asserts that he has been denied a “meaningful
opportunity for release” and is being held in violation
of Miller v. Alabama, 567 U.S. 460
(2012). Compl. ¶¶ 2, 3, 18, 24, 25, 26;
see also Pl.'s Obj. to R. & R. at 1-3.
Miller, the Supreme Court considered the
constitutionality of a sentencing scheme that required
life-without-parole sentences for juvenile offenders
convicted of homicide. See Miller, 567 U.S. at 479.
The Court determined that the sentencing scheme violated the
Eighth Amendment by making an offender's youth
“irrelevant to imposition of that harshest prison
sentence.” Id. The Court expressly declined to
impose a “categorical bar on life without parole for
juveniles, ” acknowledging the possibility that in the
appropriate homicide case the Eighth Amendment might permit
the imposition of a life-without-parole sentence, provided
the determination was based on an individualized assessment.
Id.; see also Montgomery, 136 S.Ct. at 725.
Jones concluded that Miller is inapplicable because
“Plaintiff was not sentenced to life-without-parole and
has in fact been considered for parole on at least six
occasions.” R. & R. at 3. The Court agrees. To
establish a Miller violation, Plaintiff must show:
(1) that he was sentenced to life without parole; and (2)
that such sentence was imposed without an individualized
assessment. See Montgomery, 136 S.Ct. at 725 (noting
Miller's holding that “a juvenile
convicted of a homicide offense could not be sentenced to
life in prison without parole absent consideration of the
juvenile's special circumstances”). Plaintiff
cannot show that he was sentenced to life without the
possibility of parole, and he does not complain about a lack
of individualized assessment at sentencing. See
Compl. ¶ 4 (“Plaintiff does not . . . challenge
his judgment or conviction . . . .”); Contreras
v. Davis, 716 Fed.Appx. 160, 163 (4th Cir. 2017)
(holding that habeas claims were “not cognizable under
Miller because [the petitioner] [was] not subject to
a mandatory sentence without parole”); Starks v.
Easterling, 659 Fed.Appx. 277, 280 (6th Cir. 2016)
Objection, Plaintiff also claims that his sentence violates
Graham v. Florida, 560 U.S. 48 (2010). The Court has
considered this argument but concludes that because Plaintiff
was convicted of homicide, he does not fall within the
category of juvenile offenders entitled to a
“meaningful opportunity for release” under
Graham. See, e.g., Budder v.
Addison, 851 F.3d 1047, 1055 (10th Cir. 2017)
(explaining that Graham applies only to juvenile
offenders not convicted of homicide). It is
therefore unnecessary to determine whether the complained-of
state parole procedures afforded Plaintiff an
“opportunity to demonstrate maturity and
rehabilitation.” Id. ¶ 19. See
generally Graham, 560 U.S. at 75 (explaining that
“a juvenile offender convicted of a nonhomicide
crime” must be given “some meaningful opportunity
to obtain release based on demonstrated maturity and
Fourteenth Amendment Claim
Fourteenth Amendment claim is predicated on allegations that,
in denying him parole, state officials did not consider his
youth, failed to provide a reason for denial, did not provide
him with an attorney, and did not allow him to appeal the
denial. See Compl. ¶¶ 6, 10-11.
Jones concluded that Plaintiff has no liberty interest in
obtaining parole because, under Oklahoma law, the granting of
parole is entirely discretionary. See R. & R. at
3-4. The Court agrees. See Ong Vue v. Henke, 746
Fed.Appx. 780, 782 (10th Cir. 2018) (“[T]here is no
constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid
sentence. Thus, because [the plaintiff] doesn't have a
liberty interest in receiving meaningful consideration for
parole under Oklahoma law, he fails to state a due-process
claim.” (citation and internal quotation marks
acknowledging the discretionary nature of parole as a general
matter, Plaintiff submits that juvenile offenders have a
liberty interest in obtaining parole under Graham
and Miller. See Pl.'s Obj. to R. &
R. at 3-5. Assuming without deciding that Graham and
Miller create a liberty interest in parole,
Plaintiff would not fall within the category of juvenile
offenders to whom that liberty interest applies. See
Eighth Amendment Claim
alleges that the State's repeated denials of parole
constitute cruel and unusual punishment in violation of the
Eighth Amendment. See Compl. ¶¶ 23-26.
Judge Jones correctly rejected this claim. See
Burnett, 754 Fed.Appx. ...