Tucker v. Norris et al
RECOMMENDED DISPOSITION recommending that the District Court dismiss 2 Petitioner's Petition for Writ of Habeas Corpus with prejudice for failing to exhaust his state court remedies. Objections to R&R due by 10/2/2009. Signed by Magistrate Judge Beth Deere on 9/18/09. (hph)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION R I C H A R D SCOTT TUCKER A D C # 122704 V S. NO. 5:08-CV-00276-BSM-BD PETITIONER
L A R R Y NORRIS, Director, A r k a n s a s Department of Correction, et al.
R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections T h e following recommended disposition has been sent to United States District J u d g e Brian S. Miller. Any party may file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the o b je c tio n . If the objection is to a factual finding, specifically identify that finding and the e v id e n c e that supports your objection. An original and one copy of your objections must b e received in the office of the United States District Court Clerk no later than eleven (1 1 ) days from the date you receive the Recommended Disposition. A copy will be f u rn is h e d to the opposing party. Failure to file timely objections may result in waiver of th e right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: Clerk, United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325
B ackground R ic h a rd Scott Tucker, an Arkansas Department of Correction ("ADC") inmate,
b rin g s this petition for writ of habeas corpus (docket entry #2) under 28 U.S.C. § 2254. A Yell County Circuit Court jury convicted Petitioner of raping his minor daughter and s e n te n c e d him to 120 months in the ADC. Tucker v. State, No. CACR 02-629, 2003 WL 8 4 0 9 5 8 , at *1 (March 5, 2003). The Arkansas Court of Appeals affirmed Petitioner's c o n v ic tio n on appeal. Id. P e titio n e r does not challenge his conviction but instead challenges the decisions of th e Arkansas Parole Board (hereinafter "the Board") denying him parole. Specifically, P e titio n e r claims: (1) the Board violated the "due process clause and the Fifth and F o u rte e n th Amendments of the Constitution" when it denied him release on parole after s e rv in g 70% of his sentence and "placed the burden of a rehabilitation program" on him; (2 ) Arkansas's parole statutes and the Board's regulations create a liberty interest in p a ro le ; thus, the Board's refusal to parole him after he had served 70% of his sentence c o n s titu te d a denial of his due process rights;(3) the Board denied him due process when it did not provide him with a copy of "Form 153" to prepare for his hearing or provide h im with notice of rehearing; (4) the Board denied him due process because he received o n ly "boilerplate responses" as reasons for denial of parole; and (5) the Board denied him d u e process because it considered information that "creates a biased process." In his amended petition, petitioner also claims: (1) ADC policy that permits the B o a rd to require an inmate to complete a "voluntary program" before being released on
parole inappropriately lengthened his sentence; and (2) the Board denied him due process b e c a u s e one of the hearing officers was prejudiced against "persons with violent or a g g ra v a te d charges." III. E x h a u stio n of State Court Remedies In their Response, Respondents contend that Petitioner's claims should be d is m is s e d for failure to exhaust state court remedies. Specifically, Respondents argue th a t Petitioner should have exhausted his claims by bringing a state court action under Arkansas's Administrative Procedure Act. The federal statute concerning habeas corpus jurisdiction requires that a district c o u rt dismiss a state prisoner's federal habeas petition "if the prisoner has not exhausted a v a ila b le state remedies as to any of his federal claims." Coleman v. Thompson, 501 U.S. 7 2 2 , 731, 111 S.Ct. 2546 (1991) (interpreting 28 U.S.C. § 2254). Grounded in comity a n d federalism, "the exhaustion doctrine is principally designed to protect the state courts' ro le in the enforcement of federal law and prevent disruption of state judicial p ro c e e d in g s ." Id. (quoting Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198 (1982)). A "habeas petitioner who has failed to meet the State's procedural requirements f o r presenting his federal claims has deprived the state courts of the opportunity to a d d re s s those claims in the first instance." Id. at 732; Clay v. Norris, 485 F.3d 1037, 1 0 3 9 (8th Cir. 2007). "Only a firmly established and regularly followed state practice," h o w e v e r, is a procedural bar to federal habeas review. Ford v. Georgia, 498 U.S. 411, 4 2 3 -2 4 , 111 S.Ct. 850 (1991).
Petitioner claims a state remedy is not available because he cannot seek judicial re v ie w of an administrative adjudication based on the plain language of Ark. Code Ann. § 25-15-212(a). The statute provides: (a ) In cases of adjudication, any person, except an inmate under sentence to th e custody of the Department of Correction, who considers himself or h e rs e lf injured in his or her person, business, or property by final agency a c tio n shall be entitled to judicial review of the action under this s u b c h a p te r. A RK. CODE ANN. § 25-15-212(a). Under the statute, a petitioner seeking relief must file a p e titio n within thirty (30) days after service of the agency's final decision in the circuit c o u rt of any county where he resides or in Pulaski County. Id. at §§ 25-15-212(b)(1) and (2 ). Petitioner is correct that the language of the statute appears to bar his claims. As R e sp o n d e n ts point out, however, in Clinton v. Bonds, 306 Ark. 554, 86 S.W.2d 169 (1 9 9 1 ), the Arkansas Supreme Court found unconstitutional that portion of the statute b a rrin g inmates from bringing constitutional claims. Consequently, inmates may seek s ta te judicial review of constitutional questions under Arkansas's Administrative P ro c e d u re s Act. Id.; see also Brown v. Maxwell, No. 00-753, 2001 WL 1558570, at *1 (2 0 0 1 ) ("[i]n Clinton v. Bonds, we granted inmates the right to pursue judicial review of c o n s titu tio n a l questions after an administrative adjudication"); Orisini v. Beck, No. 981 0 1 3 , 2000 WL 92332, at *1 (2000). Petitioner could have filed a claim raising his constitutional claims under the A d m in is tra tiv e Procedures Act in the circuit court within thirty days after he was served
the Board's decision denying his request for parole reconsideration dated May 10, 2009. The time has passed for Petitioner to file such an action, and there are no other non-futile s ta te court remedies available to Petitioner. Consequently, the Court recommends that the D is tric t Court dismiss the petition with prejudice. See Pryor-Kendrick v. Norris, No. 5 :0 8 c v 0 0 1 0 5 , 2008 WL 4756190, at *4 (E.D. Ark. 2008) (petitioner's claims regarding A D C disciplinary proceeding must be dismissed for failure to exhaust state court re m e d ie s because she could have brought a suit under the Arkansas Administrative P ro c e d u re s Act as construed by Clinton). E v e n if Petitioner had exhausted his state administrative remedies, the District C o u rt could not grant the relief Petitioner requests. A federal court may issue a writ of h a b e a s corpus only for a violation of the Constitution, laws or treaties of the United S ta te s. 28 U.S.C. §§ 2241(c), 2254(a). There is no federal constitutional interest in h a v in g state officers follow state law or prison officials follow prison regulations. Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003). Therefore, Petitioner's claims a g a in s t Respondents in this regard do not amount to a cognizable federal habeas claim. Regardless of whether any ADC or Parole Board rules or regulations have been violated, th is Court is limited to determining whether a federal violation has occurred. T h e Fourteenth Amendment to the United States Constitution, extending the due p ro c e s s protections of the Fifth Amendment, provides in part that no state shall "deprive a n y person of life, liberty, or property, without due process of law." U.S. Const. amend. X IV , § 1. Protected liberty interests may arise from the Due Process Clause itself or from
an expectation or interest created by state laws or policies. Wilkinson v. Austin, 545 U.S. 2 0 9 , 221 (2005). The Due Process Clause itself does not create a protected liberty interest in the p o s s ib ility of parole or release before expiration of a validly imposed sentence. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Further, nothing in the Arkansas statutes governing parole creates anything more than a m e re possibility of parole, and thus the statutes do not establish any right to release on p a ro le that would invoke due process protection. Pittman v. Gaines, 905 F.2d 199, 201 (8 th Cir. 1990); Parker v. Corrothers, 750 F.2d 653, 655-57 (8th Cir. 1984).1 In s te a d , the statutes place minimal limitations on the Board's discretion and p ro v id e that the Board "may" release an individual on parole when, in its opinion, there is a reasonable probability that he can be released without detriment to the community or h im s e lf . ARK. CODE ANN. § 16-93-701(a)(1). The statutes also clearly provide for d is c re tio n on the part of the Board in formulating "all policies, rules, and regulations re g a rd in g parole," setting conditions for parole, and in determining if or when a particular in m a te will be paroled. Id. §§ 16-93-206(a)(1) & (4), (e)(1) & (f), 16-93-1302. The Arkansas Supreme Court has emphasized the broad discretionary authority g ra n te d to the Board under the state's parole statutes. Michalek v. Lockhart, 730 S.W.2d
In Parker v. Corrothers, 750 F.2d 653 (8th Cir. 1984), the Eighth Circuit Court of A p p e a ls held that Arkansas Board of Parole Regulation 3.09 created a liberty interest in p a ro le . Id. at 661. The Court went on to explain that due process required that the Board p ro v id e more than "boiler plate" language in denying a parole request. Id. at 662. The B o a rd has revised its regulations since the Court's decision in Parker. (#42)
210, 211 (1987); see Dougan v. Ford, No. 04-623, 2005 WL 2387576, *2 (Sept. 29, 2 0 0 5 ) (unpub.) ("[i]f the conditions [set by the Board] are too onerous, appellant could d e c lin e to accept the conditions set, and elect to serve out his sentence instead"); see also H a m ilto n v. Brownlee, 237 Fed. Appx. 114, 115 (8th Cir. 2007) (unpub.) (Arkansas p a ro le statutes do not create protectible liberty interest in discretionary parole decisions, a n d prisoner did not have protectible liberty interest in having parole board follow its own h e a rin g policy). A prisoner committed to the custody of a state penal authority, "can be assured of o n ly one thing that he will be released from the State's custody at the end of the term of ye a rs specified by the sentencing court." Richmond v. Duke, 909 F.Supp. 626, 631 (E.D. A rk . 1995). IV. C o n c lu s io n T h e Court recommends that the District Court dismiss Petitioner's petition for writ o f habeas corpus (#2) with prejudice for failing to exhaust his state court remedies. D A T E D this 18th day of September, 2009.
____________________________________ U N IT E D STATES MAGISTRATE JUDGE
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