Walker v. State of Alabama et al (INMATE 3)

Filing 33

RECOMMENDATION OF THE MAGISTRATE JUDGE that the 1 Petition for Habeas Corpus Relief filed by Walker be denied and that this case be dismissed with prejudice; Objections to R&R due by 12/2/2009. Signed by Honorable Wallace Capel, Jr on 11/19/2009. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION N E IL WALKER, # 095197, Petitioner, v. S T A T E OF ALABAMA, et al., Respondents. ) ) ) ) ) ) ) ) )

Civil Action No. 1:08cv144-WHA (W O )

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE N e il Walker ("Walker"), an Alabama prisoner proceeding pro se, has filed what this c o u rt construes to be a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1 .) In his petition, Walker contends that the Alabama Board of Pardons and Paroles ("Parole B o a rd " ) violated his due process rights by relying on false information in denying him parole. W alke r also requests expungement of allegedly false information from his parole file. In a d d itio n , he seeks access to his parole file so that he can ascertain whether it contains false in f o rm a tio n . Upon review of the claims presented by Walker and in light of applicable f e d era l law, this court concludes that Walker is not entitled to any relief through his instant p e titio n . I. BACKGROUND

In 1994, following a jury trial in the Circuit Court for Houston County, Alabama, W a lk e r was convicted of the murder of Judy Ann Jett, a crime for which he was sentenced to life in prison. His conviction and sentence were upheld on direct appeal and in post-

c o n v ic tio n proceedings in the Alabama courts. This court, in April 2003, denied Walker re lie f on a federal habeas petition he filed challenging the murder conviction. (See Walker v . State of Alabama, et al., Civil Action No. 1:01cv1383-MEF.) In May 2006, the Parole Board considered Walker's case and, following a hearing, d e n ie d him parole.1 Walker then filed a petition for writ of certiorari in the Circuit Court of M o n tg o m e ry County, Alabama, challenging the Parole Board's decision.2 In November

2 0 0 6 , the Montgomery Circuit Court dismissed Walker's petition. Walker appealed that d ec isio n to the Alabama Court of Criminal Appeals, which affirmed the circuit court's jud g m en t in an unpublished memorandum opinion issued on December 14, 2007. Thereafter, W a lk e r sought certiorari review in the Alabama Supreme Court. On February 1, 2008, the A lab a m a Supreme Court struck Walker's petition for writ of certiorari for failure to comply w ith Ala.R.App.P. 39. (See Doc. No. 16, Exhs. A-G.) W a lk e r filed the instant habeas petition on February 20, 2008. II. A. DISCUSSION

S ta n d a r d of Review for Habeas Claims Adjudicated in State Court W h e re a state prisoner's claim was adjudicated on the merits in state court, federal

The Parole Board's decision denying Walker parole was issued on May 9, 2006. At that time, the Parole Board scheduled Walker's next parole consideration for May 2011. Under Alabama law, the initial review of a decision by the Parole Board is by a petition for a common-law writ of certiorari filed in the Circuit Court of Montgomery County. See Ex parte Alabama Bd. of Pardons and Paroles, 849 So.2d 255, 257 (Ala. Crim. App. 2002); Sellers v. State, 586 So.2d 994 (Ala. Crim. App. 1991). 2
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c o u rts may not grant habeas relief unless the state court's decision "was contrary to, or in v o lv e d an unreasonable application of, clearly established Federal law, as determined by th e Supreme Court of the United States," or unless a state court decision was based on an u n re a s o n a b le determination of the facts in light of the evidence presented. 28 U.S.C. § 2 2 5 4 (d )(2 ). The Antiterrorism and Effective Death Penalty Act ("AEDPA") also mandates d e f ere n c e to a state court's factual determinations unless the petitioner can rebut that p resu m p tio n by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). B. W a lk e r's "False Information" Claim W a lk e r contends that the Parole Board relied on false information presented at the p a ro le hearing and false information contained in his parole file to deny him parole. (Doc. N o . 1 at pp. 1-6; see also Doc. No. 23.) According to Walker, Douglas Valeska, the state d istric t attorney who prosecuted his case, and Lt. Donald Valenza of the Houston County S h e rif f 's Department testified falsely at his parole hearing by mischaracterizing the c irc u m s ta n c es of his crime and emphasizing its heinousness in order to poison the minds of P a ro le Board members in their assessment of his suitability for parole. Walker further a lle g e s that his parole file contains false information about the circumstances of his crime, w h ic h he says also influenced the Parole Board's decision to deny him parole. He argues that th e Parole Board's reliance on the false information violated due process.3 (See Doc. Nos.
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The court considers this ground for relief to allege a constitutional claim challenging the fact or length of Walker's custody; because Walker is in custody pursuant to the judgment of a state court, this claim is properly brought under 28 U.S.C. § 2254. See Thomas v. Crosby, 371 F.3d 782, (continued...) 3

1 and 23.) T h e Alabama parole statute 4 does not create a protected liberty interest in the e x p e c ta tio n of parole. See Ellard v. Alabama Bd. of Pardons and Paroles, 824 F.2d 937, 942 (1 1 th Cir. 1987); Thomas v. Sellers, 691 F.2d 487, 489 (11 th Cir. 1983). Where there is no lib erty interest in parole, "the procedures followed in making the parole determination are n o t required to comport with standards of fundamental fairness." O'Kelley v. Snow, 53 F.3d 3 1 9 , 321 (11 th Cir. 1995) (quotations omitted). H o w e v e r, even where there is no liberty interest in parole, a state parole board treats a prisoner "arbitrarily and capriciously," in violation of due process, if it relies upon false in f o rm a tio n to deny parole. Monroe v. Thigpen, 932 F.2d 1437, 1442 (11 th Cir. 1991). In M o n r o e , the state parole board admitted it had, at least in part, relied upon a presentence in v e stig a tio n report that erroneously stated the defendant had raped his victim to deny parole a n d classify the defendant as a sexual offender. Id. at 1441-42. The Eleventh Circuit held th a t the parole board acted "arbitrarily and capriciously" in violation of due process when it k n o w in g ly relied on the false information. Id. at 1442. The court distinguished the facts of M o n r o e from the facts of an earlier case that held "prisoners do not state a due process claim b y merely asserting that erroneous information may have been used during their parole

(...continued) 785-88 (11th Cir. 2004) (citing Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003)). See also Gwin v. Snow, 870 F.2d 616, 624 (11th Cir. 1989).
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See § 15-22-26, Ala. Code 1975. 4

c o n sid e ra tio n ." See id.; cf. Slocum v. Georgia State Bd. of Pardons and Paroles, 678 F.2d 9 4 0 , 942 (11 th Cir. 1982). Monroe, therefore, established an exception for parole

d e te rm in a tio n s that were knowingly made based on false information. See 932 F.2d at 1442. T h e court emphasized, however, that "federal courts should not interfere with the d is c re tio n a ry decisions of [a state parole] [b]oard `absent flagrant or unauthorized action' by th e [b]oard." Id. at 1441 (quoting Thomas, 691 F.2d at 489). See also Jones v. Ray, 279 F.3d 9 4 4 , 946 (11 th Cir. 2001) ("prisoners cannot make a conclusory allegation regarding the use o f [false] information as the basis of a due process claim"). T h e Alabama Court of Criminal Appeals applied Monroe to Walker's case in d e te rm in in g that Walker failed to demonstrate a due process violation based on the use of f a ls e information by the Parole Board. The relevant portion of the Alabama Court of C r im in a l Appeals' opinion reads as follows: In Monroe v. Thigpen, 932 F.2d 1437 (11 th Cir. 1991), the United States Court o f Appeals for the Eleventh Circuit held that the Board's knowing reliance on a d m itte d ly false information to deny parole was arbitrary and capricious. This C o u rt has followed the holding in Monroe v. Thigpen; however, we have made it clear that "mere allegations in a petition for a writ of certiorari that the Board r e li e d on false information are not sufficient" to state a claim for relief. H e n le y v. Alabama Board of Pardons and Paroles, 849 So.2d at 261. A d d itio n a lly, this Court has held that the Monroe v. Thigpen exception to the B o a rd 's virtually unfettered discretion in granting or denial of parole applies o n ly when the Board relies on information it knew to be false and the Board a d m its its reliance on such false information. See Henley v. Alabama Board o f Pardons and Paroles, 849 So.2d at 261; Hill v. State, 594 So.2d at 248. A c c o rd Johnson v. Rodriguez, 110 F.3d 299, 309 n.13 (5 th Cir. 1997) (" M o n r o e itself limits the `right' which it uncovered to situations where the S ta te admits the use of false information; a prisoner's allegations that false in f o rm a tio n was used to deny him parole is insufficient, in the absence of such 5

a n admission, to state a claim." H e re , the Board explicitly denied being aware that any false information w a s contained in Walker's prison file or that any false information was p re se n te d during the parole hearing. The Board further denied relying on any in f o rm a tio n that it knew to be false. Accordingly, the Monroe v. Thigpen e x c ep tio n does not apply to this case. Additionally, Walker failed to present a n y evidence to support his claim. Although Walker attempted to support his c la im with additional evidence presented to the circuit court, that evidence c o u ld not be considered because it was not a part of the agency's record. See, e .g ., Sanders v. City of Dothan, 642 So.2d 437, 440 (Ala.1994). Walker's c la im is nothing but a bare allegation, insufficient to state a claim for relief. S e e , e.g., Bostwick v. Alabama Board of Pardons and Paroles, 865 So. 2d 1 2 4 5 (Ala. Crim. App. 2003). Therefore, Walker is not entitled to any relief o n this ground. M o re o v e r, none of Walker's allegations actually involve "false" in f o rm a tio n . Walker's primary allegation of false information centered around a statement in his progress review form that Walker had shot his girlfriend, s ta b b e d her several times, and set her body on fire. Walker claims that because th e medical expert testified at trial that he could not determine the cause of d e a th , the statement on the progress report, Walker says, is false. Because the v ic tim 's cause of death could not be determined does not render the purported f a cts false. (D o c . No. 16, Exh. E at pp. 5-6.) W a lk e r does not point to any demonstrably false information presented at his parole h e a rin g , or to any demonstrably false information contained in his parole file. Instead, he a p p e ars to seek to relitigate the issue of his guilt of the murder for which he was convicted, w h e n he has already challenged that conviction through a previous § 2254 habeas petition f ile d in this court.5 And while he protests, as inflammatory and prejudicial, the testimony of See Walker v. State of Alabama, et al., Civil Action No. 1:01cv1383-MEF. To the extent Walker challenges his murder conviction, his petition is subject to dismissal as a successive habeas (continued...) 6
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V a le sk a and Lt. Valenza at his parole hearing, he fails to explain what part of such testimony w a s actually false. In his petition, as he did in the state court, Walker makes much of the m ed ical examiner's testimony at his criminal trial that he could not determine the victim's c a u se of death, when there was evidence indicating that Walker shot the victim, stabbed her s e v e ra l times, and set her body on fire. However, the medical examiner's testimony does not e x o n e ra te Walker of the murder, nor does it undermine the evidence indicating that Walker s h o t, stabbed, burned, and intentionally caused the death of the victim. Therefore, as the A la b a m a Court of Criminal Appeals found, the medical examiner's testimony does not re n d e r "false" the testimony at the parole hearing or statements in Walker's parole file c o n c e r n in g Walker's actions against the victim. Moreover, the Parole Board specifically d e n ie d being aware that any false information was presented at the parole hearing or that any f a ls e information was contained in Walker's parole file. The Parole Board further

sp e c if ica lly denied relying on any information that it knew to be false when making its d ec isio n in Walker's case. This court finds that the decision issued by the state court u p h o ld in g the Parole Board's decision did not involve an unreasonable application of clearly e sta b lis h e d federal law or an unreasonable determination of the facts in light of the evidence p re s e n te d . See 28 U.S.C. § 2254(d)(2). Accordingly, Walker's right to due process was not v i o la te d , as he has failed to show that the Parole Board knowingly relied upon false

(...continued) petition filed without an order from the Eleventh Circuit Court of Appeals authorizing this court to consider a successive application for habeas relief. See Gilreath v. State Board of Pardons and Paroles, 273 F.3d 932, 933 (11th Cir. 2001). 7

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in f o rm a tio n in denying him parole.6 See Monroe, 932 F.2d at 1442. C. E x p u n g e m e n t of False Information From, and Access To, Parole File W a lk e r requests expungement of allegedly false information from his parole file and s e e k s access to his parole file so that he can ascertain whether it contains false information. (D o c . No. 1 at pp. 2 and 5-6.) First, as indicated above, Walker does not establish the e x is te n c e of any demonstrably false information in his parole file, and the Parole Board does n o t admit that any information in Walker's parole file is false. Moreover, Walker offers no f a cts establishing that he has been injured and/or prejudiced by allegedly incorrect in f o rm a tio n contained in his parole file or that there is erroneous information in his parole f ile that the Parole Board relied upon to deny him parole. In addition, it is well settled that " [ t]h e refusal of a parole board to allow an inmate to examine his file `does not assume the p ro p o rtio n s of a deprivation of his rights under the Constitution or the laws of the United S tates.'" 7 Jackson v. Reese, 608 F.2d 159, 160 (5 th Cir. 1979) (citing Cook v. Whiteside, 505 F .2 d 32, 34 (5 th Cir. 1974)). Furthermore, a prisoner's "conclusory allegation" that his parole f ile contains false information, and that his denial of parole was based on false information, is insufficient to give the prisoner a due process right to examine his parole file as part of a

Walker also asserts that the Parole Board does not intend to consider him for parole in the future, which would result, he says, in his serving a sentence of life without parole. (Doc. No. 1 at pp. 3-4.) This claim is frivolous, as the Parole Board has scheduled Walker's next parole consideration for May 2011. Walker's parole files are also privileged under state law. See § 15-22-36(b), Ala. Code 1975; see also Ex parte Alabama Bd. of Pardons and Paroles, 814 So.2d 870, 872-73 (Ala. 2001). 8
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" g e n e ra l fishing expedition" in search of false information that might exist. See Slocum, s u p r a , 678 F.2d at 942. Finally, by his claims seeking expungement of information from, and a c ce ss to, his parole file, Walker seeks relief that is proper under 42 U.S.C. § 1983 and not th ro u g h a petition for habeas corpus relief. See Gwin v. Snow, 870 F.2d 616 (11 th Cir. 1989). S e e also Miller v. Nix, [No. 08-15320] 2009 WL 2959684 (11 th Cir. Sept. 17, 2009) ( u n p u b l is h e d ) . Walker is not entitled to habeas relief based on these claims. III. CONCLUSION

A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the petition f o r habeas corpus relief filed by Walker be denied and that this case be dismissed with p rejud ice. It is further ORDERED that on or before December 2, 2009, the parties shall file objections to th e said Recommendation. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v.

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W a in w r ig h t, 677 F.2d 404 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D O N E this 19th day of November, 2009.

/s /W a lla c e Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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