United States District Court, W.D. Oklahoma
SUPPLEMENTAL REPORT AND RECOMMENDATION
M. PURCELL, UNITED STATES MAGISTRATE JUDGE
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.
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. Petitioner was sentenced to life
imprisonment. Petition at 1; see also District Court
of Garfield County, Case No. CF-1983-265. Petitioner's
grounds for relief herein arise primarily from Oklahoma's
parole procedures, as amended since Petitioner's
underlying criminal conviction.
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.
1997, the Oklahoma legislature repealed that statute and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. 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).
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,
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.
42 U.S.C. § 1983 Screening
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).
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).
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. ...