Kennedy v. Thomas et al

Filing 16

ORDER DISMISSING PETITION-re:R&R 13 . The court finds that the report is due to be ADOPTED and the recommendation is ACCEPTED. The objection of the petitioner is hereby OVERRULED. The petition for writ of habaes corpus is DENIED and DISMISSED WITH PREJUDICE. Signed by Chief Judge Sharon Lovelace Blackburn on 11/4/2013. (AVC)

FILED
2013 Nov-04 PM 04:24
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

RICHARD D. KENNEDY,

)
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Petitioner,
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vs.
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WILLY THOMAS, Warden; ALABAMA
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BOARD OF PARDONS AND PAROLES;
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BILL WAYNE; ROBERT P. LONGSHORE; )
CLIFF WALKER; and ATTORNEY
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GENERAL OF THE STATE OF ALABAMA, )
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Respondents.
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Case No. 7:12-cv-311-SLB-TMP

ORDER DISMISSING PETITION
The magistrate judge filed his report and recommendation in the above-styled cause on
August 19, 2013, recommending that the § 2254 petition for writ of habeas corpus with respect
to a denial of probation on a state sentence be denied. Petitioner filed his objections to the report
and recommendation on September 13, 2013, followed by a motion for a hearing on
September 16, 2013. Having now carefully reviewed and considered de novo the objections to
the report and recommendation, the report itself, and other materials in the court file relevant to
the case, the court finds that the report is due to be ADOPTED and the recommendation
ACCEPTED.
The petitioner first objects to the magistrate judge’s observation in the report and
recommendation that there is no constitutional right to parole. Petitioner contends that he is not
attempting to establish a right to parole but, rather, the right to have his parole decision made on
the basis of complete and accurate facts. The magistrate judge correctly recognized the nature of
the petitioner’s claim, as evidenced by the magistrate judge’s additional observation that “it is a
violation of the Due Process clause for a parole authority to deny parole on the basis of

knowingly false information.” See Doc. 13, p. 3. Because the magistrate judge understood
correctly the nature of the petitioner’s claim, his first objection is overruled.
Petitioner argues that the magistrate judge ignored the mandate of 18 U.S.C. § 4206 that
requires the United States Parole Commission to state the factual basis of its reasons for denying
parole. The short answer to this objection, of course, is that § 4206 applies only to the parole of
federal prisoners under the authority of the United States Parole Commission, not the parole of
state prisoners like petitioner. The statute simply does not apply to state parole processes. It
creates no liberty interest in state prisoners protected by the Due Process clause.
At the heart of the petitioner’s objections is the contention that he was denied due process
because the Alabama Board of Pardons and Paroles denied him parole without considering the
statement by Michelle Orso that she was involved in the death of the child for which petitioner
was convicted and sentenced. The magistrate judge carefully considered this argument. He
wrote:

Citing the so-called confession of Orso, plaintiff contends that the Board
arbitrarily and capriciously denied him parole despite knowing that Orso, not he,
committed the crimes of murder and child abuse for which he is incarcerated.
He proclaims his factual innocence of the crimes, saying that it was Orso who
abused and murdered her child, and that it was arbitrary and capricious for the
Board to deny him parole on the basis that he committed that [sic] crimes.
This argument fails for at least two reasons: first, unlike Monroe, the
Board does not admit that it believes that petitioner was falsely convicted of the
crimes for which he is incarcerated, and second, the evidence of Orso’s statement
falls far short of exonerating the petitioner of the crimes.

The court agrees with the magistrate judge. Even assuming that the state parole board did not
consider the Orso statements regarding the death of the child, this does not show that the Board
relied knowingly on false information. Petitioner remains validly convicted of and sentenced for
the crimes arising from the death of Orso’s child. The state parole board had nothing before it,
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even if it had considered the Orso statement, indicating that the conviction is invalid. Also, as
explained by the magistrate judge, the Orso statement is far from an exoneration of the
petitioner. He wrote:

Also, the Orso statement offered by petitioner does not exonerate him, or even
raise a question about his guilt. Although it is true that Orso admits in the
statement that she struck her child on the head and stomach, this alone does not
prove that petitioner also did not do so, or that he was not ultimately involved in
causing the child’s death. Nothing in the statement by Orso declares that
petitioner was not involved or responsible for the child’s injuries and death. On
this statement alone, neither the Board nor this court has any basis for questioning
the accuracy of petitioner’s convictions. The Board was not arbitrary and
capricious in its decision to deny parole notwithstanding this evidence.

The court agrees. Having considered the Orso statement de novo, the court agrees that, while it
might also implicate Orso in the child’s death, it does not exonerate petitioner.
Therefore, because the magistrate judge carefully and correctly addressed the issue raised
by the petitioner, his objections to the report and recommendation are meritless and are hereby
OVERRULED. Accordingly, having adopted the report and recommendation, the petition for
writ of habeas corpus is DENIED and DISMISSED WITH PREJUDICE.
The Clerk is DIRECTED to mail a copy of the foregoing to the petitioner.
DONE this 4th day of November, 2013.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

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