Opinion
CIV-21-445-D
01-06-2022
QUINCY BARNES, Petitioner, v. LONNIE LAWSON, Warden, Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, has filed this action seeking relief under 28 U.S.C. § 2241. Before the Court is Respondent's Motion to Dismiss. Doc. No. 10. Petitioner filed a Response (Doc. No. 15), to which Respondent filed a Reply. Doc. No. 18. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Motion to Dismiss be granted.
I. Background
On January 30, 2014, Petitioner was convicted in state court of Robbery in the First Degree in violation of Okla. Stat tit. 21, § 798. Doc. No. 10 at 1-2; Doc. No. 10-2; see also Oklahoma State Courts Network, State v. Barnes, Stephens County District Court, Case No. CF-2013-107B. The court sentenced Petitioner to, inter alia, twenty-five years imprisonment with all but the first 15 suspended. Id.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db'stephensνmber=CF-2013-00107B&cmid=7930
Petitioner filed the instant habeas Petition on May 5, 2021. Doc. No. 1. In Ground One, Petitioner alleges that he is “earning and accruing credits towards his sentence pursuant to 21 O.S. § 13.1 and 57 O.S.Supp. 1984 § 138” and that the Oklahoma Department of Corrections (“ODOC”) is unlawfully and in violation of the Fourteenth Amendment “withholding [P]etitioner's ‘earned' ‘state created liberty interest' and not crediting them towards [his] sentence.” Doc. No. 1 at 7. Petitioner alleges in Ground Two that ODOC is withholding his “state created liberty interests, (earned credits)” without providing him “the minimum requirements of procedural due process appropriate in prison proceedings involving the denial and revocation of a ‘state created liberty interest' in good time credits.” Id. (additional quotations omitted). Petitioner requests that ODOC “be ordered to apply all lawfully earned credits ‘state created liberty interest' towards [his] sentence and [P]etitioner be discharged and immediately released from custody[.]” Id. at 8.
Respondent has filed a Motion to Dismiss arguing Petitioner failed to exhaust state court and administrative remedies prior to filing this lawsuit, and that his claims are untimely and fail on the merits. Doc. No. 10 at 2-8. Petitioner has responded disputing each of Respondent's bases for dismissal and arguing, inter alia, that he has already earned credits, is entitled to application of the same, and Respondent's failure to apply them constitutes a violation of his due process rights. Doc. No. 15.
II. Analysis
The Due Process Clause of the Fourteenth Amendment guarantees certain procedural safeguards before a State may deprive an individual of his or her “life, liberty, or property.” U.S. Const. amend. XIV; Wolff v. McDonnell, 418 U.S. 539, 558 (1974). “We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient[.]” Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted). Therefore, with respect to Petitioner's claims of due process deprivations, Petitioner must first establish that he had a constitutionally protected interest.
Protected liberty interests may be derived from the Due Process Clause itself or from state law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Hewitt v. Helms, 459 U.S. 460, 466 (1983), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 484 (1995). “[T]he Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison.” Wolff, 418 U.S. at 557. However, Oklahoma has created a liberty interest in earned sentence credits. Okla. Stat. tit. 57, § 138(A); Waldon v. Evans, 861 P.2d 311, 313 (Okla. Crim. App. 1993). Thus, Oklahoma inmates are generally entitled to minimum due process protections prior to the revocation of their earned credits. Significantly however, Oklahoma law prohibits the application of earned credits to reduce sentences imposed for certain crimes, including first degree robbery, until the convicted individual has served 85% of his sentence. Okla. Stat. tit. 21, § 13.1(9) (“Persons convicted of . . . [certain offenses including first degree robbery, ] shall not be eligible for earned credits or any other type of credits which have the effect of reducing the length of the sentence to less than eighty-five percent (85%) of the sentence imposed.”).
As Respondent established, Petitioner was sentenced in 2014 to essentially 15 years imprisonment for his conviction of First-Degree Robbery. Doc. No. 10-2. Petitioner will have served 85% of that sentence as of January 1, 2026. Doc. No. 10 at 2; Doc. No. 10-1 at 2. Because Petitioner is not entitled to the application of earned sentence credits to reduce his sentence until that date, he has no state-created liberty interest in said credits. Accordingly, Petitioner cannot establish a due process violation, and he is not eligible for habeas relief on the grounds raised in his Petition. See Nida v. Larson, No. CIV-21-450-PRW, 2021 WL 4554671, at *3 (W.D. Okla. Oct. 5, 2021) (“[W]hile it is true that the state has created a cognizable liberty interest in ‘earned' time credits, the state has also explicitly foreclosed any possibility of Petitioner applying any such credits to his sentence until he has completed 85% of the sentence . . . . Because Petitioner is not entitled to the application of earned sentence credits to reduce his sentence at this time, he has no state-created liberty interest in the application of said credits at this time. Accordingly, Petitioner has failed to establish the deprivation of a constitutionally-protected liberty interest, cannot establish a due process violation, and is ineligible for habeas relief on the grounds raised in the petition.” (footnote omitted)); Alexander v. McCollum, No. CIV-14-36-M, 2014 WL 359236, at *2 (W.D. Okla. Feb. 3, 2014) (holding that the petitioner, convicted of first degree burglary, “has no liberty interest in earning good-time credits until he has served 85% of his sentence”) (citing Harrison v. Morton, 490 Fed.Appx. 988, 990 (10th Cir. 2012); Okla. Stat. tit. 21, § 13.1). Therefore, Respondent's Motion to Dismiss should be granted.
In his Response to the Motion to Dismiss, Petitioner argues that his Petition must state a viable claim for habeas relief because the Court ordered Respondent to respond. Doc. No. 15 at 8-9. In so arguing, Petitioner relies on Rule 4 of the Rules Governing Section 2254 Cases and 28 U.S.C. § 2243. However, these sources state only that a petition should be dismissed if it is clear from the face of it that the petitioner is not entitled to habeas relief. An order from the Court for a response does not signify the Court has determined the petitioner has stated a claim entitling him to habeas relief, only that it is not clear from the face of the petition that the action must be dismissed.
In light of this recommendation, it is not necessary to address Respondent's additional bases for dismissal.
RECOMMENDATION
Based on the foregoing findings, it is recommended Respondent's Motion to Dismiss (Doc. No. 10) be GRANTED and the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 be dismissed without prejudice. Petitioner is advised of his right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court by January 26 th, 2022. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived”).
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.