United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court for review of the Report and
Recommendation [Doc. No. 15] issued by United States
Magistrate Judge Bernard M. Jones pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Judge Jones recommends that the
Petition for a writ of habeas corpus under 28 U.S.C. §
2241 be denied. Petitioner has filed a timely Objection
[Doc. No. 16]. Thus, the Court must make a de novo
determination of any part of the Report to which a specific
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); Fed.R.Civ.P. 72(b)(3).
seeks relief from the application to his state-court criminal
sentences of the “85% rule” of Okla. Stat. tit.
21, § 13.1. Under this rule, Petitioner is not eligible
for parole consideration, and cannot receive any credits
toward earlier release, until he has served 85% of the prison
time imposed in 2012 for possession of child pornography.
claims the statute of his conviction, Okla. Stat. tit. 21,
§ 1024.2, was added to Section 13.1 through a
legislative amendment in 2015, and applying the amended
statute to his 2010 offenses violates the Ex Post Facto and
Due Process Clauses of the Fifth and Fourteenth Amendments.
Respondent has raised procedural defenses of untimeliness and
non-exhaustion of state court remedies, Judge Jones
recommends that the Petition be denied for lack of
merit. Judge Jones gives two reasons: 1)
Petitioner's claim is inconsistent with Oklahoma law,
which treated his crimes as 85% rule offenses before the 2015
amendment, see R&R at 2-3 (quoting West v.
State, No. F-2013-766 (Okla. Crim. App. Dec. 12, 2014)
(unpublished)); and 2) Petitioner's claim is unsupported
by federal law, which holds that an Oklahoma inmate has no
liberty interest in parole eligibility, id. at 3-4
(quoting Clark v. Fallin, 654 Fed.Appx. 385, 388
(10th Cir. 2016) (unpublished), and West v. Bryant,
763 Fed.Appx. 652, 661 (10th Cir. 2019)
record shows that Petitioner pleaded guilty to eight counts
of possession of child pornography in violation of Okla.
Stat. tit. 21, § 1024.2, and the District Court of Tulsa
County, Oklahoma, sentenced him on January 24, 2012, to eight
consecutive five-year terms of imprisonment, with the last
three terms suspended. See Resp., Ex. 1 [Doc. No.
11-1], at 1, 3, 5, 7, 9, 11, 13, 15 (ECF page numbering). The
offenses were all committed on August 19, 2010. Id.
On the dates of Petitioner's offenses and sentencing, the
statutory authority for the 85% rule listed as covered
crimes, “Child Pornography as defined in Section
1021.2, 1021.3 or 1024.1 of this title.” See
Okla. Stat. tit. 21. § 13.1(16) (Supp. 2009 and 2011).
Petitioner's statute of conviction made it a crime
“to buy, procure, or possess child pornography in
violation of Section 1024.1 through 1024.4 of this
title.” See Okla. Stat. tit. 21, § 1024.2
(2011). Thus, throughout Petitioner's time in custody,
the Department of Corrections (DOC) has applied the 85% rule
to his sentences involving child pornography as defined by
Section 1024.1. Petitioner correctly states, however, that
a legislative amendment effective November 1, 2015, first
added Section 1024.4 (and aggravated child pornography in
violation of Section 1040.12a) to the list of statutes cited
in the child pornography paragraph of Section 13.1.
See 2015 Okla. Sess. Law Serv. Ch. 290 (West);
see also Okla. Stat. tit. 21, § 13.1(16) (Supp.
construing Petitioner's Objection due to his pro
se status, the Court understands that Petitioner
challenges both of Judge Jones' findings. As to the
finding that state law applied Section 13.1 to
Petitioner's offenses prior to the 2015 amendment,
Petitioner faults Judge Jones for relying on an unpublished
decision of the Oklahoma Court of Criminal Appeals (OCCA) and
failing to consider that insufficient notice to a criminal
defendant that the 85% rule will apply to his offense,
standing alone, may be a denial of due process. See
Obj. at 2-4. As to the finding that federal law does not
recognize a liberty interest in parole consideration,
Petitioner asserts that the 85% rule also denies him the
right to earn sentence credits, which
“guarantees that he will serve a longer period
of incarceration.” Id. at 1-2 (emphasis in
consideration, the Court agrees with Judge Jones that
Petitioner's federal claims rest on a faulty state-law
premise regarding the reach of Section 13.1 before 2015, and
his due process argument is inconsistent with decisions of
the state's highest court. The OCCA has issued several
decisions defining a defendant's rights with respect to
the 85% rule. As pertinent here, in Ferguson v.
State, 143 P.3d 218, 219 (Okla. Crim. App. 2006), and
Pickens v. State, 158 P.3d 482, 483 (Okla. Crim.
App. 2007), the court held that a defendant should be
informed of the 85% rule before entering a plea of guilty or
nolo contendere to an offense that is subject to the
rule. Thus, Petitioner's due process right
to notice of the 85% rule was protected by state law rules
governing his guilty plea proceeding, apart from the language
of Section 13.1 itself. The applicability of the 85% rule was
not a matter decided later by DOC or affected by a later
amendment of the statute.
the 2015 amendment of Section 13.1 does not provide
Petitioner any basis for relief from the 85%
regarding the alleged liberty interest implicated by the 85%
rule's effect on sentence credits, Petitioner's
arguments again reflect a misunderstanding of state law. An
inmate does not have an absolute right to earn sentence
credits. The statute regarding earned credits provides:
“Except as otherwise provided by law, every inmate of a
state correctional institution shall have their term of
imprisonment reduced monthly, based upon the class level to
which they are assigned.” Okla. Stat. tit. 57, §
138(A). Section 13.1 “is precisely such a law.”
Mayes v. Dowling, 780 Fed.Appx. 599, 2019 WL 2714041
at *2 (10th Cir. 2019) (unpublished) (internal quotation
importantly, the Tenth Circuit has expressly rejected the
same arguments that Petitioner makes in this case. In
West v. Bryant, 763 Fed.Appx. 652, 661 (10th Cir.),
cert. denied, No. 19-5248, 2019 WL 4923156 (U.S.
Oct. 7, 2019), an Oklahoma inmate “argued in the
district court that because aggravated child pornography was
not enumerated in the statute when he was convicted, it is an
ex post facto law that has unconstitutionally increased his
sentence by denying him earned time credits.” The
district court “rejected his argument, reasoning that
application of the 85% Rule . . . does not extend the
duration of incarceration beyond the term of years initially
imposed. It merely postpones the date on which an inmate is
initially eligible to be considered for parole.”
West, 763 Fed.Appx. at 661 (internal quotation
omitted). “Reasoning that Mr. West lack[ed] any federal
due process rights in the parole process, the district court
concluded he also lacked a liberty interest protected by the
federal Due Process Clause.” Id. The court of
appeals found the district court's decision “was
neither debatable nor wrong, ” holding that “the
eighty-five percent rule does not implicate a
constitutionally protected interest.” Id.
Therefore, Petitioner “cannot successfully allege a due
process violation based on [the 85% rule's] application
to his sentence.”
THEREFORE ORDERED that the Report and Recommendation [Doc.
No. 15] is ADOPTED and the § 2241 Petition is DENIED. A
separate judgment shall be entered accordingly.
FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 Cases, the Court must issue or deny a
certificate of appealability (“COA”) when it
enters a final order adverse to a petitioner. The requirement
of § 2253(c)(1) to obtain a COA also applies when a
state habeas petitioner is proceeding under § 2241.
See Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.
2000). A COA may issue only if Petitioner “has made a
substantial showing of the denial of a constitutional
right.” See 28 U.S.C. § 2253(c)(2).
“A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district
court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed ...