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Metoyer v. Fudge

United States District Court, W.D. Oklahoma

July 29, 2019

DELYNN FUDGE, et al., Defendants.



         Before the Court is the Report and Recommendation [Doc. No. 9] issued by United States Magistrate Judge Bernard M. Jones upon referral of this matter. See 28 U.S.C. § 636(b)(1)(B) and (C). Judge Jones conducted an initial screening pursuant to 28 U.S.C. § 1915A(a) and (b) and recommends dismissal of Plaintiff's Complaint. Plaintiff has filed an Objection [Doc. No. 12] and has also filed a Motion for Discovery and to Produce Documents [Doc. No. 11]. The Court must now make a de novo determination of the portions of the Report to which objection is made, and may accept, reject or modify the recommended decision in whole or in part. See 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3).

         I. Background

         Plaintiff, an Oklahoma inmate appearing pro se, brings this action under 42 U.S.C. § 1983 for alleged constitutional violations related to his prior parole hearings. Plaintiff is serving a life sentence for a 1996 first-degree-murder conviction entered in No. CF-95-3479, District Court of Tulsa County, State of Oklahoma, for a crime committed in 1982. His conviction was affirmed by the Oklahoma Court of Criminal Appeals on July 8, 1998 in No. F-96-1573.[1]

         Judge Jones noted that “Plaintiff's Complaint is lengthy” but construed “his repetitive arguments” as raising the following three claims for relief: (1) Plaintiff has a liberty interest in parole and Defendants denied him that interest without due process of law; (2) Oklahoma's 1997 Truth in Sentencing Act (the Act), which changed the process for considering an inmate's eligibility for parole, violates Plaintiff's equal protection rights; and (3) the Act violates the Ex Post Facto Clause of the United States Constitution. R&R at 2.[2]

         Plaintiff objects and contends that Judge Jones has misconstrued the claims raised in his Complaint. Plaintiff argues he is not bringing a claim that he has a liberty interest in parole. Instead, Plaintiff argues the Act includes a sentencing matrix “setting a sentencing range as a guide for parole and a definite end to pre-1988 offender's [sic] incarceration.” Pl.'s Obj. at 3. Plaintiff further argues the Act includes language demonstrating that certain parole hearing procedures are not discretionary, but mandatory, giving rise to a liberty interest. See id. at 4, 6-7 (citing Okla. Stat. tit. 57, § 332.7(D) and (G)). For the reasons set forth, Plaintiff's arguments lack merit and his attempt to establish a liberty interest subject to due process protections is to no avail.

         II. Discussion

         Plaintiff appears to concede that the Oklahoma statutes governing parole create no liberty interest as the decision whether to grant parole to an inmate “lies firmly within the discretion of the Board, the Department of Corrections, and/or the governor. Koch v. Daniels, 296 Fed.Appx. 621, 627 (10th Cir. 2008) (citing Boutwell v. Keating, 399 F.3d 1203, 1213-15 (10th Cir. 2005)); see also Clark v. Fallin, 654 Fed.Appx. 385, 388 (10th Cir. 2016) (the Tenth Circuit has “repeatedly concluded” that Oklahoma's parole system does not create “a liberty interest that would be protected by the Constitution's guarantee of due process).

         In an attempt to end-run this well-established law, Plaintiff argues that the Act requires the Oklahoma Pardon and Parole Board (Board) to implement a procedure to determine what sentence Plaintiff would have received under the applicable matrices of the Act. As the Tenth Circuit has explained the Act “originally included matrices of sentencing ranges for various crimes.” Seegars, 124 Fed.Appx. at 638. “Although the Oklahoma legislature soon repealed the sentencing matrices, the matrices are still used in calculating parole eligibility dates.” Id. (citing Okla. Stat. tit. 57, § 332.7(A)(3)).

         Plaintiff does not argue his parole eligibility date has been improperly determined and “it is clear that the sole purpose of any recalculation [of Plaintiff's sentence under the Act] is to determine the date upon which the inmate becomes eligible for parole consideration.” Campbell v. Province, No. CIV-06-382-RAW, 2008 WL 268186 at *3 (E.D. Okla. Jan. 29, 2008) (unpublished op.). Plaintiff's contention that the purpose of the matrix is to set “a sentencing range as a guide for parole and a definite end to incarceration,see Obj. at 2, is misguided. See Seegars, 124 Fed.Appx. at 638-39 (rejecting argument that the Act's language requiring procedures for determining “what sentence the person would have received under the applicable matrix” gave prisoner the right to have his life sentence modified to a determinable number of years; the statute's language “focus[es] exclusively on the calculation of parole eligibility dates”).

         Plaintiff's argument that he has a due process right to certain procedures being followed during his parole consideration also fails. Plaintiff relies on subsections (D) and (G) of the Act.[3] Plaintiff appears to rely on use of language utilizing the word “shall” in these subsections to argue the Act gives rise to a protected liberty interest. But the Tenth Circuit has rejected similar arguments. See Clark, 654 Fed.Appx. at 388 (rejecting Oklahoma prisoner's challenge to the denial of parole “as well as the process by which” he was denied parole on grounds no liberty interest in parole exists under Oklahoma law); Jackson v. Standifird, 503 Fed.Appx. 623, 625 (10th Cir. 2012) (because Oklahoma prisoner had no liberty interest in parole, he could not make a claim for a denial of procedural or substantive due process); Koch, 296 Fed.Appx. at 628 (explaining that where a prisoner has no constitutionally-protected liberty interest in parole, there are no “constitutionally-protected interests in the process at issue”); Hunter v. Beck, 244 Fed.Appx. 848, 852 (10th Cir. 2007) (rejecting argument that statutory language mandating processes that might give a prisoner legitimate expectations in receiving a parole hearing did not created a constitutionally-protected liberty interest); see also Bridenstine v. Farris, No. CIV-16-498-R, 2017 WL 454210 at *9 (W.D. Okla. Sept. 15, 2017) (addressing Oklahoma prisoner's parole eligibility argument and concluding that even if “Oklahoma law gives Petitioner a legitimate expectation in being considered for parole ‘at the earliest date' after he serves some portion of his prison sentence . . . an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause”) (internal quotation marks and citations omitted), R&R adopted, 2017 WL 4544611 (W.D. Okla. Oct. 11, 2017).

         Plaintiff further appears to argue that he has been denied “his invested liberty interest” in his eligibility for clemency pursuant to the Act. But as the Tenth Circuit has held, Oklahoma's Parole Board “has discretion to decide whether to consider an offender for clemency, so there is no constitutionally protected liberty interest.” Ward v. Province, 283 Fed.Appx. 615, 618 (10th Cir. 2008); see also Parker v. Dowling, 664 Fed.Appx. 681, 682 (10th Cir. 2016) (under Oklahoma law, the “prospect of commutation is necessarily a speculative event, one in which the prisoner has no liberty interest protected by the Due Process Clause” (internal quotation marks and citations omitted)).

         For these reasons, the Court rejects Plaintiff's argument that, contrary to well-established law, parole should be considered mandatory and not discretionary under the Act.

         Plaintiff also objects to the findings in the Report that he has failed to state a claim alleging a violation of his equal protection rights. But Plaintiff bases his claim on the same erroneous assertion that parole in Oklahoma is mandatory, not discretionary. See Obj. at 8-9. Plaintiff otherwise does not challenge the Magistrate Judge's findings with respect to this claim. Accordingly, for the reasons ...

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