United States District Court, W.D. Oklahoma
L. PALK, UNITED STATES DISTRICT JUDGE
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).
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.
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
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.
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).
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)).
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
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. 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).
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)).
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.
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 ...