Simmons v. Allbaugh

          ORDER

          SCOTT L. PALK UNITED STATES DISTRICT JUDGE.

         Petitioner, Glynn R. Simmons, is an Oklahoma state prisoner appearing pro se in this matter. However, at the time the Petition was filed and through the filing of his Objection to the Magistrate Judge's Report and Recommendation, Petitioner appeared through counsel, Rand Eddy. The Court granted Mr. Eddy leave to withdraw his appearance after the Objection was filed. See Order [Doc. No. 28] (J. Miles-LaGrange).^[1]

         I. Introduction

         Petitioner is serving a life sentence for a 1975 murder conviction. See Roberts v. State, 564 P.2d 246 (Okla. Crim. App. 1977).^[2] In 1995 the Oklahoma Pardon and Parole Board (Board) recommended Petitioner for parole release, but the Governor of the State of Oklahoma rejected the Board's parole recommendation. In 1997, Petitioner brought an action in this judicial district pursuant to 28 U.S.C. § 2254 and challenged his conviction and sentence. His petition was denied and the Tenth Circuit affirmed the denial. See Simmons v. Ward, No. 98-6414, 1999 WL 983090 (10th Cir. Oct. 29, 1999) (unpublished op.).^[3]

         Petitioner now brings this action pursuant to 28 U.S.C. § 2241 challenging the execution of his sentence arising from matters related to Oklahoma's parole procedures and prior parole denials by the Board. Petitioner seeks as relief his “immediate release.”

         II. Petitioner's Claims for Relief

         In the Petition [Doc. No. 1], Petitioner identifies the following four grounds for relief:

Ground One: The State of Oklahoma has extended the duration of Mr. Simmons' term of imprisonment in violation of the 14th Amendment Equal Protection Clause;

Ground Two: Three-year offset of parole hearing frequency violates Mr. Simmons' federal protection against ex post facto laws;

Ground Three: Contracts between the State of Oklahoma and the corporate prisons that contain quota/occupancy guarantees subject Mr. Simmons to denial of parole release and/or interference with parole consideration by private actors, which is unconstitutional; the State of Oklahoma knows of the undue influence and failed to take action to abate it; and

Ground Four: By any definition or measure, Mr. Simmons has served a longer term of imprisonment than any other prisoner in the State. The confluence of factors, i.e., Mr. Simmons will not admit guilt; Mr. Simmons' co-defendant has been free on parole for 10 years and application of the more onerous 85% demonstrate due process violations.

See Pet., ¶ 13.

         In further support of his first ground for relief, Petitioner alleges that the Board's actions in denying him parole are arbitrary and capricious. Petitioner claims at both his 2014 and 2017 parole hearings, he did not have the benefit of consideration by a five-member Board, as required by the Oklahoma Constitution. See Pet'r's Am. Br. at 8-9 (citing Okla. Const. Art. 6, § 10). Specifically, with respect to his 2014 parole consideration, Petitioner claims the Board consisted of only four members who rendered a split decision. With respect to his 2017 parole consideration, Petitioner claims the Board consisted of only three members and that one of those members is the son of the former District Attorney of Oklahoma County who was the District Attorney at the time of his conviction. Petitioner claims the State's arbitrary administration of its parole system constitutes a violation of his federal constitutional rights. Id. at 14 (citing Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1 (1979)).

         As to his second ground for relief, Petitioner alleges that he should be receiving annual parole review instead of review once every three years. He alleges changes to the Oklahoma statute governing his parole consideration constitute a violation of the Ex Posto Facto Clause. Id. at 17-19.

         In further support of his third ground for relief, Petitioner claims that he has been housed in a private prison for the past 20 years and that Oklahoma's contractual agreements with private, for-profit prisons has resulted in a decrease in parole releases. He claims this conduct constitutes additional grounds for finding the State has acted arbitrarily and capriciously in the denial of his parole. Id. at 19 (alleging ...