Opinion
CIV-23-171-HE
04-28-2023
JAMES PATRICK LESLEY, Petitioner, v. CHRIS RANKINS, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
Petitioner James Patrick Lesley, a pro se prisoner in state custody (“Petitioner”), seeks a Writ of Habeas Corpus under 28 U.S.C. § 2241.(Doc. 1).United States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Docs. 5, 9). For the reasons set forth below, the undersigned recommends that Petitioner's application for habeas relief be DENIED.
A pro se litigant's pleadings are liberally construed “and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court cannot serve as Petitioner's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Petitioner states he brings this Petition under 28 U.S.C. § 2254. (Doc. 1, at 1). Since Petitioner's claim for relief concerns the denial of parole, the undersigned liberally construes it as filed under 28 U.S.C. § 2241. Beylik v. Estep, 377 Fed. App'x 808, 812 (10th Cir. 2010) (petitioner's action concerning the denial of parole was properly characterized as being brought pursuant to 28 U.S.C. § 2241) (citing Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000)).
Citations to the parties' filings and attached exhibits will refer to this Court's CM/ECF pagination.
I. Screening
The Court must review habeas petitions and summarily dismiss a petition “[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). This Report and Recommendation provides Petitioner with notice, and he can present his position by objecting to the recommendation. See Smith v. Dorsey, 30 F.3d 142, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could “address the matter by objecting” to the report and recommendation).
II. Factual and Procedural Background
Petitioner is a state prisoner currently being held at the Oklahoma State Reformatory in Granite, Oklahoma. (Doc. 1, at 1). Following a jury trial, Petitioner was convicted and sentenced on January 3, 2003, as follows: one count of murder in the first degree, life with the possibility of parole; one count of assault and battery with a deadly weapon with intent to kill, 20 years; one count of attempting to kill another, 16 years; and one count of conspiracy to commit first-degree murder, 10 years; all to be served consecutively. (Doc. 1, at 1; Doc. 1, at Ex. 1, at 1, 4); Oklahoma County District Court, Case No. CF-1999-6416.
See https://okoffender.doc.ok.gov/ (OK DOC # 438533).
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=oklahoma&number=CF-1999-6416&cmid=327647 (Docket Sheet) (last visited April 24, 2023). The undersigned takes judicial notice of the docket sheets and related documents in Petitioner's state criminal proceedings. See United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”) (citation omitted).
Petitioner was first considered for and denied parole in January 2015. Oklahoma Pardon and Parole Board Docket Search.Petitioner has subsequently been considered for and denied parole in 2018 and 2021. (Id.) Petitioner's next parole consideration will occur in January 2024. (Id.)
https://www.ok.gov/ppb/search/app/index.php (DOC # 438533).
Petitioner filed the instant Petition on February 21, 2023. (Doc. 1). Petitioner brings one ground for relief, claiming “Failure of Pardon and Parole Board to fulfill their constitutional duty nullified the judgment and sentence.” (Id. at 4). In support of this argument, Petitioner attaches two petitions for habeas relief filed in the Greer County District Court and the Oklahoma County District Court, various state court documents, and letters and documents presented to the Oklahoma Pardon and Parole Board regarding Petitioner's parole consideration. (Doc. 1, at Exs. 1-8). In Petitioner's state court petition for habeas corpus filed November 3, 2022, Petitioner makes the same claim and argues that the “‘possibility of parole' granted to Petitioner by the ‘Judgment and Sentence' was unlawfully stripped away from the Petitioner by the failure or refusal of the Pardon and Parole Board to fulfil[l] their Constitutional duty.” (Doc. 1, at Ex. 1, at 2). He cites Article 6, Section 10 of the Oklahoma Constitution, which states in part, “[i]t shall be the duty of the Board to make an impartial investigation and study of applicants for commutations, pardons, or paroles, and by a majority vote make its recommendation to the Governor of all persons deemed worthy of clemency,” and “[t]he Governor shall have the power to grant, after conviction, and after favorable recommendation by a majority vote of Pardon and Parole commutations, pardons, and paroles ....” (Id.) Petitioner further states he wants “this Court to grant a Writ of Habeas Corpus, RULE the ‘Judgment and Sentence' VOID, and ORDER the immediate release of the Petitioner from under the custody and control of the Oklahoma Department of Corrections.” (Id. at 3).
III. Analysis
Petitioner appears to be challenging the decision of the Oklahoma Pardon and Parole Board to deny him parole, which, liberally construed, is a due process challenge under the Fourteenth Amendment. See Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 3 (1979). “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Id. at 7. “That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained . . . a hope which is not protected by due process.” Id. at 11. See Griffith v. Bryant, 625 Fed.Appx. 914, 917 (10th Cir. 2015) (“[E]ven if the § 2241 petition implicitly attempts to allege a due process violation, there is generally no federal constitutional right to parole.”) (citing Greenholtz). “Also, because Oklahoma's parole scheme is discretionary, [petitioner] has no constitutionally protected due process liberty interest in parole.” Id. (citing Shabazz v. Keating, 977 P.2d 1089, 1093 (Okla.1999) (“[T]here is no protectible liberty interest in an Oklahoma parole.”)). See also Ballard v. Franklin, 463 Fed. App'x 732, 735 (10th Cir. 2011) (finding that § 2241 petitioner had “no liberty interest in parole under the Oklahoma parole statutes” and thus “no claim for violation of procedural or substantive due process”); Simmons v. Allbaugh, No. CIV-18-232-SLP, 2019 WL 3302820 at *5 (W.D. Okla. July 23, 2019) (denying § 2241 claim because “[i]t is well-established that Oklahoma's parole system is discretionary and therefore that no liberty interest exists protected by due process”) (citing Clark v. Fallin, 654 Fed. App'x 385, 387 (10th Cir. 2016)). Therefore, Petitioner's alleged deficiency in the Oklahoma Pardon and Parole Board's exercise of its duty does not violate his due process rights, and his Petition should be denied.
Nothing in Petitioner's Petition or attached exhibits implicates the Equal Protection Clause. “The Equal Protection Clause of the Fourteenth Amendment . . . is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Petitioner “fails to identify any similarly-situated individual that has been given any different or more beneficial treatment.” Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009).
IV. Recommendation and Notice of Right to Object.
For the reasons stated, the undersigned recommends that the Petition (Doc. 1) be DENIED as Petitioner lacks any due process rights in Oklahoma's parole process. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by May 19, 2023, in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2). Plaintiff is further advised that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.