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Shields v. Smith

United States District Court, W.D. Oklahoma

October 4, 2019

MARK SHIELDS, Petitioner,
v.
R.C. SMITH, Warden, Respondent.

          SUPPLEMENTAL REPORT AND RECOMMENDATION

          GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner appearing pro se, filed an action for a writ of habeas corpus under 28 U.S.C. § 2254. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the Petition be dismissed.

         I. Background

         In 1984, Petitioner was convicted of murder in the first degree. Doc. No. 1 (“Petition”) at 1; see also Oklahoma State Courts Network, District Court of Garfield County, Case No. CF-1983-265.[1] Petitioner was sentenced to life imprisonment. Petition at 1; see also District Court of Garfield County, Case No. CF-1983-265.[2] Petitioner's grounds for relief herein arise primarily from Oklahoma's parole procedures, as amended since Petitioner's underlying criminal conviction.

         Based on the Petition, it appears Petitioner suffers from multiple misconceptions regarding Oklahoma's previous and current parole procedures. At the time of Petitioner's conviction, Oklahoma's Forgotten Man Act required the Oklahoma Pardon and Parole Board (“PPB”) 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). Additionally, once denied, the statute required the inmate be reconsidered for parole annually in the form of an in person hearing before the PPB. Id.

         In 1997, the Oklahoma legislature repealed that statute and replaced it with the Truth in Sentencing Act.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 a 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, such as Petitioner, convicted of a violent crime are not eligible for reconsideration for three years.[3] Okla. Stat. tit. 57, § 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, because Petitioner is a violent offender, when the PPB considers his application for parole, it first considers only a “completed report submitted by the staff of the [PPB], ” informally known as a “jacket review, ” rather than holding an in-person hearing. Okla. Stat. tit. 57, § 332.7(D)(1); Taylor v. Hargett, No. 99-6102, 2000 WL 135172, at *1 (10th Cir. 2000); see also, cf., Maynard v. Fallin, 564 Fed.Appx. 943, 945 (10th Cir. 2014) (detailing the change in parole consideration brought by the Truth in Sentencing Act).

         By this action, Petitioner purportedly seeks parole consideration and the application of good time credits to his sentence. Petition at 22. The Petition in this matter is lengthy and repetitive, and by no means a model of clarity but the undersigned has liberally construed the following claims. In Ground One, Petitioner appears to contend that his sentence of life imprisonment was modified by the Truth in Sentencing Act to a set number of years in order to determine his earliest parole consideration and when that occurred, he was entitled to the application of earned good time credits. Id. at 5. In Grounds Two through Seven, Petitioner essentially argues that he is entitled to the parole procedures that were in place at the time that he entered a guilty plea as part of a plea agreement to the charge of murder in the first degree. Id. at 7, 8, 11, 13, 15, 17.

         Although Petitioner filed this action under 28 U.S.C. § 2254, it should be construed as an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Yellowbear v. Wyo. Att'y Gen., 525 F.3d 921, 924 (10th Cir. 2008) (“Section [] 2241 is a vehicle for . . . attacking the execution of a sentence. A § 2254 petition, on the other hand, is the proper avenue for attacking the validity of a conviction and sentence.” (citations omitted)). Additionally, to the extent Petitioner is challenging his individual parole considerations and seeks new parole review, his cause of action is properly construed as a habeas corpus action. Herrera v. Harkins, 949 F.2d 1096, 1097 (10th Cir. 1991). To the extent Petitioner seeks injunctive or declaratory relief for alleged constitutional deficiencies in parole procedures, his cause of action would properly seek relief under 42 U.S.C. § 1983. See Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 3 (1979) (involving § 1983 due process challenge to parole procedures); Herrera, 949 F.2d at 1097 (“[A prisoner] may use [§] 1983 to attack parole procedures.”); Richards v. Bellmon, 941 F.2d 1015, 1018 n.3 (10th Cir. 1991) (“A single complaint may seek relief partly under [28 U.S.C.] § 2254 and partly under [42 U.S.C.] § 1983.”). It is unnecessary to determine definitively the nature of Petitioner's action, however, because, as set forth below, he has failed to assert a viable constitutional challenge to Oklahoma's parole procedures.

         II. Screening Requirement

         A. 42 U.S.C. § 1983 Screening

         A federal district court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). After conducting an initial review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory.” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).

         B. Habeas Screening

         Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief . . . .” Rule 4, Rules Governing § 2254 Cases. “[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). Petitioner has such notice by this Supplemental Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Supplemental Report and Recommendation. Further, when raising a dispositive issue sua sponte, the district court must “assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits . . . .” Id. (quotations omitted); Thomas v. Ulibarri, 214 Fed.Appx. 860, 861 n.1 (10th Cir. ...


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