United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.
a pro se inmate, filed a Complaint under 42 U.S.C. §
1983 alleging numerous constitutional violations surrounding
his two prior parole hearings, (Compl.) [Doc. No. 1]. United
States District Judge Scott L. Palk referred the matter for
proceedings consistent with 28 U.S.C. § 636(b)(1)(B),
(C). For the reasons set forth below, it is recommended that
the Court dismiss the Complaint on screening.
Background and Plaintiff's Claims
1996, Plaintiff was convicted of first degree murder for a
crime committed in 1982. Compl. at 9, 11. He began serving
his sentence of life with parole in 2000. Id. at 9.
When Plaintiff was convicted, Oklahoma's Forgotten Man
Act obliged the Parole Board to consider “every inmate
. . . for parole on or before the expiration of one-third of
his maximum sentence.” Shirley v. Chestnut,
603 F.2d 805, 806 (10th Cir. 1979). The Oklahoma legislature
repealed that statute in 1997 and replaced it with the Truth
in Sentencing Act. As applied to offenders whose crimes were
committed before July 1, 1998, the Truth in Sentencing Act
sets initial docket dates for parole consideration at either
a percentage of the mid-point of the sentencing matrix for
the crime, or at one-third of the actual sentence, whichever
is earlier. Okla. Stat. tit. 57, § 332.7(A). Once denied
parole, inmates convicted of a violent crime are not eligible
for reconsideration for three years. Id. §
332.7(E)(1); see Traylor v. Jenks, 223 Fed.Appx.
789, 790 (10th Cir. 2007) (“Under the Truth in
Sentencing Act, a person who committed a violent crime before
July 1, 1998, and has been denied parole, is eligible for
reconsideration at least once every three
years.”). Additionally, when the Board considers his
application for parole, an inmate generally receives
“jacket review” rather than an in-person hearing.
See, e.g., Taylor v. Hargett, 203 F.3d 836, 2000 WL
135172, at *1 (10th Cir. 2000) (internal quotation marks
omitted); see also, generally, Maynard v. Fallin,
564 Fed.Appx. 943, 945 (10th Cir. 2014) (detailing the change
in parole consideration brought by the Truth in Sentencing
sues Oklahoma Pardon and Parole Board (the Parole Board)
members Delynn Fudge, Tom Gillert, Robert Macy, C. Allen
McCall, Michael Kris Steele, and Roberta Fullerton for
alleged constitutional violations involving his November 2015
and November 2018 parole hearings. Although Plaintiff's
Complaint is lengthy, the Court construes his repetitive
arguments as raising three claims for relief. In his first
claim, Plaintiff argues he has a liberty interest in parole
and alleges Defendants denied him that interest without due
process of law. Compl. at 6-14, 14-21, 21-33. In his second
and third claims, Plaintiff alleges that Oklahoma's 1997
Truth in Sentencing Act, enacting changes in the process for
considering an inmate's eligibility for parole, created
both an Equal Protection and an Ex Post Facto Clause
violation. Id. at 14-21.
Plaintiff is suing government officials, the Court has a duty
to screen the Complaint. See 28 U.S.C. §
1915A(a). In that analysis, the Court must consider whether
the Complaint fails to state a claim upon which relief may be
granted. Id. § 1915A(b)(1). To survive
screening, Plaintiff's Complaint “must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
In applying this standard, the Court “accept all the
well-pleaded allegations of the [Complaint] as true and must
construe them in the light most favorable to . . .
[P]laintiff.” Thomas v. Kaven, 765 F.3d 1183,
1190 (10th Cir. 2014) (internal quotation marks and citation
Plaintiff's Due Process Claims
alleges Defendants violated his constitutional right to due
process by failing to properly consider him for parole.
Compl. at 6-14. 14-21, 21-33. Plaintiff alleges a myriad of
shortcomings by Defendants, including that the Parole Board
failed to establish procedures for determining
Plaintiff's eligibility for parole under applicable
statutory matrices; provide an in-person parole hearing;
provide an annual parole hearing; properly review his
application for parole; and properly vote on his application
for parole. Id. Plaintiff also argues that the
Parole Board has failed to comply with recently enacted
legislation regarding parole for prisoners who are at least
60 years old. Id. at 21-33; see Okla. Stat.
tit. 57, § 332.21. However, Plaintiff's claims are
rooted in his belief he has a constitutional liberty interest
in parole, and he is incorrect. See, e.g., Compl. at
6 (Plaintiff relying on his “state created statutory
liberty interest rights”). Because it is discretionary,
Plaintiff has no constitutionally protected liberty interest
in parole. See Greenholtz v. Inmates of Neb. Penal &
Corr. Complex, 442 U.S. 1, 11 (1979) (“That the
state holds out the possibility of parole provides
no more than a mere hope that the benefit will be obtained .
. . a hope which is not protected by due process.”
(emphasis in original)); Griffith v. Bryant, 625
Fed.Appx. 914, 917-18 (10th Cir. 2015) (“Also, because
Oklahoma's parole scheme is discretionary, [plaintiff]
has no constitutionally protected due process liberty
interest in parole.” (citing Shabazz v.
Keating, 977 P.2d 1089, 1093 (Okla. 1999) and
Shirley, 603 F.2d at 807); see also Hunter v.
Beck, 244 Fed.Appx. 848, 852 (10th Cir. 2007)
(“‘[A]n expectation of receiving process is not,
without more, a liberty interest protected by the Due Process
Clause.'” (quoting Olim v. Wakinekona, 461
U.S. 238, 251 n.12 (1983))). Therefore, none of the Parole
Board's alleged deficiencies violated Plaintiff's
constitutional rights. See Pettigrew v. Zavaras, 574
Fed.Appx. 801, 809-815 (10th Cir. 2014) (affirming dismissal
of plaintiff's claim that the Parole Board violated his
procedural and substantive due process rights when they
relied on false information in his prison file to deny parole
because plaintiff lacked a due process right in parole and
thus lacked a constitutional right to “fair parole
Plaintiff's Equal Protection Claim
alleges that the “major changes” in parole
consideration enacted by the Truth in Sentencing Act caused
him to be discriminated against and denied equal protection
of the law. Compl. at 14-21. Plaintiff appears to allege that
all inmates who are subject to the Truth in Sentencing Act
are treated differently than the “pre-1998 inmates,
” who were subject to the Forgotten Man Act.
Id. Plaintiff is correct, but such difference does
not implicate the Equal Protection Clause. The Fourteenth
Amendment's equal protection guarantee “is
essentially a direction that all persons similarly situated
should be treated alike.” City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Here all
current inmates (i.e., persons similarly situated) are
considered for parole according to the Truth in Sentencing
Act and not the Forgotten Man Act and, therefore, are treated
alike. See, e.g., Coggin v. Champion, 188 F.3d 518,
1999 WL 614700, at *2 (10th Cir. 1999) (affirming the
district court's dismissal of plaintiff's equal
protection claim - alleging he was treated differently than
inmates sentenced under new legislation - because he failed
to show that “criminals convicted and sentenced . . .
on the same date . . . received a [sentence under the new
legislation], as required for an equal protection
Plaintiff's Ex Post Facto Claim
also alleges that Okla. Stat. tit. 57, § 332.7 violates
the Ex Post Facto Clause. Compl. at 19. The Ex Post Facto
Clause “is aimed at laws that ‘retroactively
alter the definition of crimes or increase the punishment for
criminal acts.'” Cal. Dep't of Corr. v.
Morales, 514 U.S. 499, 504-505 (1995) (citations
omitted). Thus, a law violates the Ex Post Facto Clause when
it changes an allotted punishment to the offender's
disadvantage. See Lynce v. Mathis, 519 U.S. 433, 441
(1997). The Tenth Circuit Court of Appeals has clearly held
the relevant change in Oklahoma law - Okla. Stat. tit. 57,
§ 332.7's enactment - does not constitute a facial
violation of the Ex Post Facto Clause. See Henderson v.
Scott, 260 F.3d 1213, 1216 (10th Cir. 2001) ...