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Clark v. Braggs

United States District Court, W.D. Oklahoma

May 9, 2019

HERMAN TRACY CLARK, Petitioner,
v.
JEROLD BRAGGS, Respondent.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHEL UNITED STATES MAGISTRATE JUDGE.

         Herman Clark (Petitioner), a state prisoner appearing pro se, brings this action for habeas relief under 28 U.S.C. § 2241. See Doc. 1.[1] United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 5.

         For the following reasons, “it plainly appears from the petition and . . . attached exhibits that [P]etitioner is not entitled to relief, ” and the undersigned recommends summary dismissal of the petition without prejudice to refiling. Rule 4, Rules Governing Section 2254 Cases in the United States District Courts.[2]

         I. The petition.

         A. The decision Petitioner challenges in this Court.

         When prompted in his form petition to supply information about the decision or action he is challenging, Petitioner details his unsuccessful request for habeas relief in Oklahoma state district court[3] where he raised the following issues:

Legislature intent for a type of parole consideration that had been abolished the Parole Board must make rules to determine the sentence of 18-60 years [Petitioner] would have received under the appropriate matrix and failure to do so required immediate release because [Petitioner] has been imprisoned past the minimum sentence of 18 years established by statute violated due process guaranteed by the Fourteenth Amendment to the United States Constitution.

Doc. 1, at 2-3. Petitioner indicates that his challenge is also to the determination by the Oklahoma Court of Criminal Appeals that his “appeal d[id] not cite controlling authority supporting . . . his claim that Legislature has tasked the Parole Board with mandated release dates for inmates eligible for parole consideration.” Id. at 2.[4]

         B. Basis for Petitioner's challenge.

         As his single “ground (reason) t[o] support[ his] claim that [he is] being held in violation of the Constitution, laws, or treaties of the United States, ” Petitioner alleges that “[t]he Oklahoma Pardon and Parole Board deprived [him] of the substantive predicate of State law which created a liberty and property interest protected by the Fourteenth Amendment to the United States Constitution.” Id. at 7.

         C. Petitioner's supporting facts.

         Petitioner advises that he “was sentenced for a crime committed January 6, 1975 pursuant to the statute abolished by Legislature.” Id. He submits (1) the “Oklahoma statute governing the Pardon and Parole Board's procedures were specific for a crime committed prior to July 1, 1998”; (2) “a person being considered for parole created for a type of parole consideration that has been abolished by Legislature shall be considered for parole except according to the current Pardon and Parole provisions”; and (3) “the Pardon and Parole Board shall promulgate rules and procedures for determining what sentence a person eligible for parole consideration after serving one-third (1/3) of his sentence, would have received under the applicable 18-60 year sentence matrix.” Id. Petitioner submits that he “has been in prison past the minimum requirement of 18 years imprisonment” and “[f]or no reason the Pardon and Parole Board terminated [his] begotten rights to his eligibility-for-parole before meeting the specified outcoming of the mandatory language in the statute.” Id.

         D. Petitioner's requested relief.

         For relief from the alleged constitutional deprivation, Petitioner asks ...


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