Opinion
CIV-21-1016-HE
06-29-2022
MADYUN ABDULHASEEB, Petitioner, v. WILLIAM “CHRIS” RANKINS, Acting Warden of the Oklahoma State Reformatory,[1] Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Petitioner Madyun Abdulhaseeb, proceeding pro se, seeks habeas corpus relief under 28 U.S.C. § 2241, challenging the Oklahoma Pardon and Parole Board's (“Board's”) decision to deny him parole and asking the Court to order the parole board to grant him an in-person hearing. Doc. 1, at 8. United States District Judge Joe Heaton referred the matter to the undersigned for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 5.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
Relevant to this habeas petition, Petitioner is currently serving a 150-year sentence for first-degree rape. State v. Thomas, No. CF-1981-1815, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&numb er=CF-1981-1815&cmid=1125589 (last visited March 4, 2022); see also Doc. 1, Ex. 6. He most recently applied for parole on March 22, 2021, under Oklahoma's aging prisoner parole statute and was denied on April 8, 2021. Doc. 1, Exs. 11-12.
Petitioner then filed the instant habeas petition challenging the Board's denial, on October 18, 2021. Doc. 1. Respondent filed a motion to dismiss the petition as time-barred by the statute of limitations or, alternatively, because Petitioner failed to exhaust his state-court remedies. Docs. 22, 23. The undersigned recommends Respondent's motion to dismiss be granted in part and denied in part. The undersigned recommends dismissal of the petition in its entirety, as Petitioner's claims fail on the merits. See Brown v. Sirmons, 515 F.3d 1072, 1093 (10th Cir. 2008) (explaining that a court may, in the interest of efficiency, “avoid deciding procedural bar questions where claims can readily be dismissed on the merits” (quoting Snow v. Sirmons, 474 F.3d 693, 717 (10th Cir. 2007))).
Petitioner's motion for an extension of time to respond to Petitioner's Motion to Dismiss, Doc. 14, is denied as moot. Petitioner's motion to supplement his petition with the additional claim that “[t]he Oklahoma state legislature perpetrated a fraud against the U.S. government and the people of Oklahoma by labeling the new 1999 parole statue as the Truth-in-Sentencing Statute instead of the Ex Post Facto Lie-in-Sentencing Parole Statute,” Doc. 11, is denied. Petitioner's motion for leave to cure by listing the Board as Respondent, Doc. 10, is denied as moot.
I. Petitioner's claims.
Petitioner brings three claims related to Oklahoma's 2018 aging prisoner parole statute, OKLA. STAT. tit. 57, § 332.21. That statute empowers the Board to grant parole to a prisoner who is sixty years old and is not imprisoned for a crime enumerated in OKLA. STAT. tit. 21, § 13.1 or a violent crime as defined in OKLA. STAT. tit. 57, § 571, both of which include first-degree rape. OKLA. STAT. tit. 57, § 332.21(A)(4). Petitioner alleges the Board “implemented a de facto policy, practice and procedure that” retroactively applied the aging prisoner parole statute to designate “Petitioner's [rape conviction] ‘violent,'” using its discretion under an Oklahoma attorney general opinion that authorized the Board to “determine additional crimes are violent.” Doc. 1, Ex. 8 (Petitioner's declaration).
Petitioner first claims the Board “usurped the lawmaking function of the Oklahoma Legislature]” by using its discretionary authority to “retroactively” apply the statute defining some crimes as violent “to Petitioner's crimes, sentences, and parole eligibility.” Doc. 2, at 12; see also Doc. 1, Ex. 8. He argues this was a violation of the constitutional prohibition on ex post facto laws, U.S. CONST. art. I, § 10. See Doc. 2, at 12. Relatedly, Petitioner claims that the Board “through its discretion usurped the function of the legislative branch . . . by its de facto enactment of bills of attainder,” in violation of U.S. CONST. art. I, § 9, cl. 3. See id. at 22. Finally, he claims the Board's decision to deny him “a personal appearance under provisions of the aging prisoners parole statute was a gross abuse of discretion.” Doc. 2, at 25.
He seeks as relief an order that the Board “grant Petitioner a personal appearance before the Board” and a finding that the Board's application of OKLA. STAT. tit. 57, § 571 and OKLA. STAT. tit. 21, § 13.1 violated the Constitution's prohibition on ex post facto laws and constituted an illegal bill of attainder because the state “retroactively designated his crimes and him as violent.” Doc. 1, at 8.
II. Respondent's motion to dismiss.
A. Timeliness.
1. Limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
AEDPA established a one-year limitations period during which an inmate in state custody can file a federal habeas petition challenging a state conviction:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.28 U.S.C. § 2244(d)(1). This one-year limitations period applies to § 2241 petitions challenging an administrative decision. Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006) (joining other circuit courts in holding that “§ 2244(d)(1)'s one-year limitations period applies to all habeas petitions filed by persons in custody pursuant to a judgment of a State court, . . . even if the petition challenges a pertinent administrative decision rather than a state court judgment” (internal citation and quotation marks omitted)).
Under § 2244(d)(1)(D), the limitation period for filing such a petition runs from “the date on which the factual predicate to the claim or claims presented could have been discovered through the exercise of due diligence.” But where “a petitioner timely and diligently exhausts his administrative remedies, § 2244(d)(1)(D)'s one-year limitation period does not commence until the decision rejecting his administrative appeal becomes final.” Dulworth, 442 F.3d at 1268.
2. The factual predicate to Petitioner's claims.
Respondent argues Petitioner's limitation period began when the aging prisoners statute went into effect, as this statute provides the factual predicate for his claims. Doc. 23, at 4-7. That statute went into effect on November 1, 2018, and at that time, first-degree rape was defined as a violent crime for purposes of parole. See OKLA. STAT. tit. 57, § 571(aa); OKLA. STAT. tit. 21, § 13.1(10). Calculating Petitioner's limitation period based on that factual predicate, Respondent argues Petitioner's deadline to file for habeas relief was November 1, 2019. Doc. 23, at 7.
The Court finds, however, that the date Petitioner could have, through the exercise of due diligence, become aware of the factual predicate to his claims was actually the date he was first denied parole under that statute, on April 8, 2021. See Maynard v. Chrisman, 568 Fed.Appx. 625, 626-27 (10th Cir. 2014) (“[The petitioner] knew or easily could have discovered the factual predicate of his claim-that his parole consideration was now governed under the amended [statute]-after his first parole review under the amended [statute] . . . .”); Coburn v. Jones, No. CIV-12-776-R, 2012 WL 5336245, at *2 (W.D. Okla. Sept. 20, 2012) (finding petitioner's statutory year to challenge an amendment to the parole reconsideration statute started when “he became aware of the amendment to [the statute],” after “the amendment was applied to delay his parole reconsideration date for three years”), adopted, 2012 WL 5304788 (W.D. Okla. Oct. 26, 2012).
Petitioner attests that a Board employee informed him in a letter dated April 8, 2021, that his parole application had been denied due to ineligibility under § 571 or § 13.1. Doc. 1, Ex. 8, at 2. He received that letter on April 16, 2021. Id. at 3. Based on this attestation, and giving Petitioner the benefit of Maynard, the Court finds this was the date he could have, through the exercise of due diligence, become aware of the factual predicate for his claim. See Smith v. Grubbs, 42 Fed.Appx. 370, 372 (10th Cir. 2002) (holding petitioner's statutory year to challenge his parole denial under new policies started, at the latest, when he “was denied parole . . . under the new policies” and noting “[b]y his own admission, [the petitioner] became ‘suspicious' that he might have a viable claim around the time of his first parole denial”); cf. Koch v. Daniels, No. CIV-07-0015-HE, 2007 WL 2029003, at *9, adopted, 2007 WL 2029003, at*1-2 (W.D. Okla. July 10, 2007) (applying Smith in a civil rights action and concluding “that Plaintiff's claim accrued and the limitations period began to run when Plaintiff either knew or should have been aware of the facts supporting his ex post facto claim, that is by 1999, when according to his own statements, his parole reconsideration had been set off for three years, or at the latest in 2001, when he had been both denied annual consideration and not considered for preparole”). The Court therefore concludes Petitioner timely filed his petition on October 18, 2021.
B. Exhaustion.
Respondent argues that, even if the petition was timely filed, Petitioner failed to exhaust his state court remedies. A state prisoner applying for habeas relief under § 2241 must prove he exhausted all available state-court remedies before seeking a federal writ of habeas corpus. 28 U.S.C. § 2254(b)(1); Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000); see also Jones v. Davis, 366 Fed.Appx. 942, 944 (10th Cir. 2010) (stating petitioner's burden). “To exhaust a claim, a state prisoner must pursue it through ‘one complete round of the State's established appellate review process,' giving the state courts a ‘full and fair opportunity' to correct alleged constitutional errors.” Selsor v. Workman, 644 F.3d 984, 1026 (10th Cir. 2011) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). And “[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c); see also Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017).
The exhaustion requirement applies unless exhaustion would be futile- that is, unless no state-court remedy exists or such a remedy would be ineffective to protect the prisoner's rights, under the circumstances. 28 U.S.C. § 2254(b)(1); Wilson v. Jones, 430 F.3d 1113, 1118 (10th Cir. 2005).
Respondent suggests Petitioner has three avenues for state-court relief, citing Simmons v. Allbaugh, No. CIV-18-232-SLP, 2019 WL 33022820 (W.D. Okla. Jul. 23, 2019). Doc. 23, at 10-11. Those potential state-court remedies- state habeas relief, a writ of mandamus, and relief under Oklahoma's PostConviction Act, OKLA. STAT. tit. 22, § 1080-do not appear to be clearly available to Petitioner.
Turning first to state habeas relief, that remedy is available to a prisoner “at such time as he or she is entitled to immediate release.” Canady v. Reynolds, 880 P.2d 391, 400 (Okla. Crim. App. 1994). “But before that time, [the Oklahoma Court of Criminal Appeals] finds no statutory authority to render an opinion which has no effect on an inmate's judgment and sentence” because this would be an advisory opinion outside that court's jurisdiction. Id.; see also Farris v. Allbaugh, 698 Fed.Appx. 950, 958 (10th Cir. 2017) (rejecting petitioner's futility argument because “(as he explicitly states in the petition) he is asserting several claims that, if shown to have merit, would entitle him to immediate release from custody, so the Oklahoma courts are open to him”).
Petitioner does not claim entitlement to immediate release. Instead, he claims he is being unconstitutionally barred from appearing before the parole board. An appearance before the parole board does not guarantee immediate release. The Board's decisions are discretionary. Griffith v. Bryant, 625 Fed.Appx. 914, 917 (10th Cir. 2015). And the aging prisoner parole statute Petitioner challenges here, OKLA. STAT. tit. 57, § 332.21, merely empowers the Board to consider parole for prisoners who meet certain criteria but does not require it to do so. See Jackson v. Martin, No. CIV-19-589-C, 2019 WL 3953982, at *3 (W.D. Okla. July 11, 2019) (“[T]he provisions of § 332.21 clearly do not mandate that the Parole Board grant parole to aging prisoners meeting the specified circumstances ....Instead, the plain language of the statute clearly provides the Parole Board ‘is empowered' to do so. The statute does not provide that the Parole Board ‘shall' or ‘must' grant parole in such circumstances.”) (internal citation omitted), adopted, 2019 WL 3953973 (W.D. Okla. Aug. 21, 2019), certificate of appealability denied, 789 Fed.Appx. 98 (10th Cir. 2019). So even if Petitioner were able to obtain a ruling that the aging prisoner parole statute had been unconstitutionally applied to deny him a hearing, he would still not be entitled to release under that statute.
It is equally uncertain that mandamus relief would be available to Petitioner. Under Oklahoma law, “mandamus is an extraordinary writ, which will not issue unless a petitioner can show (1) a clear legal right; (2) the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief.” Canady, 880 P.2d at 396.
The aging prisoner parole statute “empower[s]” the Board “to parole a prisoner who” “[i]s not imprisoned for a crime enumerated in” OKLA. STAT. tit. 21, § 13.1 or a violent crime as defined in OKLA. STAT. tit. 57, § 571, both of which include first-degree rape. Because the statute merely empowers the Board to grant parole to qualifying prisoners it does not on its face impose a “plain legal duty” to do so. Petitioner does not argue otherwise. Although the aging prisoner parole statute excludes those convicted of violent crimes, Petitioner argues the Board's decision to retroactively apply the definition of “violent crimes” to his conviction was a matter of discretion. Doc. 1, Ex. 8 (arguing the Board “implemented a de facto policy” that “made Petitioner's robbery and rape convictions ‘violent'” based on a state attorney general opinion that the Board “may determine additional crimes are violent.” Doc. 1, Ex. 8. An alleged abuse of the Board's discretion to grant parole, without more, would not entitle Petitioner to mandamus relief. “A prisoner has no constitutional or inherent right to be considered for discretionary parole.” Scales v. Walters, 905 P.2d 233, 235 (Okla.Civ.App. 1995) (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 4 (1979)). This applies to the Oklahoma parole scheme, where “an Oklahoma prisoner has no ‘legitimate claim of entitlement[]' to parole because the [Board] has broad discretion in deciding whether to recommend that the Governor grant early release.” Bridenstine v. Farris, No. CIV-16-498-R, 2017 WL 4545210, at *9 (W.D. Okla. Sept. 15, 2017), adopted, 2017 WL 4544611 (W.D. Okla. Oct. 11, 2017) (internal citation omitted) (quoting Olim v. Wakinekona, 461 U.S. 238, 250 (1983)). And the Oklahoma Court of Criminal Appeals has denied mandamus relief to a prisoner challenging a change in the Board's parole date docketing procedure on that ground. Kelly v. Okla. Pardon & Parole Bd., 637 P.2d 858, 858-59 (Okla. Crim. App. 1981) (“Since the petitioner has been given no recognized liberty interest by having a docket date set, he has not been deprived of any constitutional right by having that date changed.”). Because he is not entitled to consideration for parole, it is not clear that mandamus relief would be available to Petitioner as a state-court remedy for any alleged constitutional violations related to the aging prisoner parole statute.
Finally, the Oklahoma Post-Conviction Act provision cited in Simmons does not on its face allow for Petitioner's claims. That Act “provides petitioners with very limited grounds upon which to base a collateral attack on their judgments.” Stevens v. State, 422 P.3d 741, 745 (Okla. Crim. App. 2018), overruled on other grounds by White v. State, 499 P.3d 762, 766 (Okla. Crim. App. 2021). It is not apparent that Petitioner's claims fall within those “very limited grounds,” as they do not attack the validity of his judgment or his original sentence.
The Act provides that: “Any person who has been convicted of, or sentenced for, a crime and who claims:
(a) that the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or laws of this state;
(b) that the court was without jurisdiction to impose sentence;
(c) that the sentence exceeds the maximum authorized by law;
(d) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(e) that his sentence has expired, his suspended sentence, probation, parole, or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint; or
(f) that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy;may institute a proceeding under this act in the court in which the judgment and sentence on conviction was imposed to secure the appropriate relief. Excluding a timely appeal, this act encompasses and replaces all common law and statutory methods of challenging a conviction or sentence.” OKLA. STAT. tit. 22, § 1080.
Respondent also cites Cotner v. Bear, No. CIV-15-1183-M, 2015 WL 9947827, at *1 (W.D. Okla. Dec. 31, 2015), adopted, 2016 WL 379793 (W.D. Okla. Jan. 29, 2016), as a case in which “this Court has previously recognized that state court remedies are available to a petitioner raising claims concerning the actions of the Pardon and Parole Board.” Doc. 23, at 11. In that case, though, the Court described the petition as “difficult to decipher,” with “rambling, repetitive statements” that were “not easily crafted into legitimate legal arguments.” Cotner, 2015 WL 9947827, at *1. Here, Petitioner's claims are readily discernible, as is the relief he requests, so the Court is able to assess the availability of state-court remedies. Also, the petitioner in Cotner had already filed state actions bringing what the Court assumed were the same claims, and the state court had dismissed those on procedural grounds. Id. at *4. Here, Petitioner attested that there were no available state-court remedies. See generally Doc. 1. In fact, he specifically argues that any attempt at exhaustion “would be futile,” citing Goodwin v. State of Okla., 923 F.2d 156 (10th Cir. 1991). Doc. 2, at 10. In Goodwin, the court held that “exhaustion of state remedies is not required where the state's highest court has recently decided the precise legal issue that petitioner seeks to raise on his federal habeas petition” and remanded the case for further proceedings. 923 F.2d at 156. Although “the mere recitation of futility is not sufficient,” Teagle v. Champion, 21 Fed.Appx. 790, 792 (10th Cir. 2001), Petitioner's allegations are sufficiently detailed for the Court to ascertain whether “there is [any] opportunity to obtain redress in state court,” Duckworth v. Serrano, 454 U.S. 1, 3 (1981).
The Court need not decide whether it would be futile for Petitioner to exhaust his state-court remedies because his claims fail on the merits. See 28 U.S.C. § 2254(b)(2) (The Court may deny a habeas petition on the merits “notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).
III. Petitioner's claims fail on the merits.
Petitioner's claims relate to the retroactive designation of his crime of conviction as violent, which bars him from consideration for parole under the aging prisoner parole statute, OKLA. STAT. tit. 57, § 332.21.
A. Petitioner's usurpation claims are not cognizable in a habeas action.
Petitioner claims that in retroactively designating first-degree rape as a violent crime, the Board “usurped the lawmaking function of the legislative branch,” violating the constitutional prohibition on ex post facto laws and bills of attainder. Doc. 2, at 12 (relating to ex post facto claim); Doc. 2, at 22 (relating to bill of attainder claim). As an initial matter, Petitioner appears to allege the Board violated the separation of powers protections in the Oklahoma constitution. See Yocum v. Greenbriar Nursing Home, 130 P.3d 213, 220 n. 29 (Okla. 2005) (“By Oklahoma's fundamental law the functions of government are divided among three branches, each of which is forbidden from encroaching upon the powers and responsibilities of the other.” (citing OKLA. CONST. art. 4, § 1)). “[C]laims of state law violations are not cognizable in a federal habeas action.” Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000); see also Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir. 2002) (“A habeas petitioner is only entitled to relief, however, for alleged violations of federal rights, not for errors of state law.” (citing Estelle v. McGuire, 502 U.S. 62, 67 (1991))). Any usurpation claim under the Oklahoma constitution therefore fails.
Setting aside his usurpation argument, Petitioner's ex post facto and bill of attainder claims still fail.
1. Petitioner's ex post facto claim fails.
Petitioner claims the retroactive designation of first-degree rape as a violent crime violated the constitutional prohibition on ex post facto laws. Doc. 2, at 12; see also Doc. 1, Ex. 8.
The United States Constitution prohibits states from passing ex post facto laws. U.S. CONST. art. I, § 10. The Ex Post Facto Clause “is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts.” Henderson v. Scott, 260 F.3d 1213, 1215 (10th Cir. 2001) (quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995)). “The Clause prohibits laws that make a previously innocent act criminal, increase the punishment for a crime after its commission, or deprive a defendant of a defense that was available at the time a crime was committed.” Tijerina v. Patterson, 507 Fed.Appx. 807, 809 (10th Cir. 2013) (citing Collins v. Youngblood, 497 U.S. 37, 42 (1990)).
To prove that a change in parole standards violates the ex post facto clause, Petitioner must prove the change “create[s] more than a speculative risk,” Powell v. Ray, 301 F.3d 1200, 1203 (10th Cir. 2002), that he will serve “a longer period of incarceration than under the earlier rule,” Garner v. Jones, 529 U.S. 244, 255 (2000). See also Henderson, 260 F.3d at 1216 (“When the new parole procedure “creates only ‘the most speculative and attenuated possibility' of increasing the measure of punishment, it is ‘insufficient under any threshold' to violate the Ex Post Facto Clause.” (quoting Morales, 514 U.S. at 509)).
Petitioner has not proven that there is “more than a speculative” risk that he will serve more time now that first-degree rape is specifically designated as violent than he would have before that designation. Even though Petitioner now cannot receive parole under the aging prisoner parole statute, Respondent attests that he has been considered for parole on the rape conviction, “as required by Oklahoma law, every three years beginning on November 12, 2013.” Doc .23, at 2. Petitioner has not yet been afforded parole, and he has not explained why consideration under the aging petitioner statute would produce a different result. See Metoyer v. Fudge, No. CIV-19-406-SLP, 2019 WL 4459335, at *3 (W.D. Okla. May 31, 2019) (“Based on the crime and the sentence's gravity, the undersigned finds Plaintiffs prospects for parole are remote and a change in the procedure for considering his parole eligibility appears immaterial.”), adopted, 2019 WL 3412912 (W.D. Okla. July 29, 2019), aff'd, 786 Fed.Appx. 849 (10th Cir. 2019).
Petitioner has therefore not proven his claim that the retroactive designation of his crime as “violent” violated the Ex Post Facto Clause.
2. Petitioner's bill of attainder claim fails.
Petitioner claims that the retroactive designation of first-degree rape as a violent crime constituted an unconstitutional bill of attainder. See Doc. 2 at 22.
A bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468 (1977).
“To determine whether a statute comes within this definition, there are three necessary inquiries: ‘(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes; and (3) whether the legislative record evinces a congressional intent to punish.'” Taylor v. Sebelius, 189 Fed.Appx. 752, 758 (10th Cir. 2006) (quoting Selective Servs. Sys. v. Minn. Pub. Interest Rsch. Grp., 468 U.S. 841, 852 (1984)).
Petitioner's bill of attainder claim fails because the denial of parole “is not the imposition of any new and separate ‘punishment,' legislative or otherwise.” Davies v. Young, 2013 WL 5450308, at *3 (D. Colo. Sept. 30, 2013); see also Diaz v. Lampela, 2014 WL 700426, at *4 (D. Colo. Feb. 24, 2014), aff'd, 601 Fed.Appx. 670 (10th Cir. 2015). Rather, “[r]elease on parole is simply a continuation of the inmate serving out the terms of his judicially-imposed sentence, still under the supervision of the Department of Corrections, albeit with certain privileges granted to the inmate to facilitate his successful return to society.” Davies, 2013 WL 5450308, at *3. The Board's alleged retroactive designation of Petitioner's crime as violent and its subsequent denial of parole under the aging prisoners statute therefore do not constitute a bill of attainder.
B. Petitioner's abuse of discretion claim fails.
Petitioner claims the Board's decision to deny him “a personal appearance under provisions of the aging prisoners parole statute was a gross abuse of discretion.” Doc. 2, at 25.
Reviewing the Board's denial of a personal appearance for abuse of discretion, the Court asks “whether the Board's action resulted ‘in an abridgement of the petitioner's constitutional rights.'” Wildermuth v. Furlong, 147 F.3d 1234, 1236 (10th Cir. 1998) (quoting Paz v. Warden, Fed. Corr. Inst., Englewood, Colo., 787 F.2d 469, 473 (10th Cir. 1986)).
Petitioner does not specify which federal constitutional rights he believes were abridged by the Board's decision to deny him an in-person hearing. See Doc. 2, at 25-26. Because he objects to the procedures used to deny him parole, the Court construes his allegations as a procedural due process claim.
Oklahoma has a discretionary parole scheme which therefore creates no constitutionally protected due process liberty interest in parole. Griffith v. Bryant, 625 Fed.Appx. 914, 917 (10th Cir. 2015); see also Greenholtz, 442 U.S. at 11 (“That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained.”). Because he has no liberty interest in receiving parole, “the procedures used by the state to deny parole do not implicate the Constitution.” Wallin v. Miller, 2015 WL 13730083, at *5 (D. Colo. May 13, 2015), adopted, 2015 WL 4095200 (D. Colo. July 6, 2015); see also Jackson v. Martin, 789 Fed.Appx. 98, 98-99 (10th Cir. 2019) (“[T]he magistrate judge correctly concluded that because Oklahoma's discretionary parole scheme does not establish a liberty interest, [petitioner's] § 2241 petition did not state a viable due process claim.”).
Because Petitioner has not demonstrated that the Board violated his constitutional rights by denying his parole application without an in-person hearing, Petitioner's abuse of discretion claim fails.
IV. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends the Court dismiss Petitioner's habeas petition in its entirety.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before July 20, 2022, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in this matter.
ENTERED.