Heath v. Kansas, State of et al
MEMORANDUM AND ORDER ENTERED: Plaintiff's motions 2 & 6 to proceed without prepayment of fees are granted. This action is dismissed and all relief is denied without prejudice. Plaintiff is assessed the remainder of the filing fee herein to be paid through payments automatically deducted from his inmate account. Signed by Senior District Judge Sam A. Crow on 12/28/2011.(Mailed to pro se party Glenn A. Heath by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GLENN A. HEATH,
STATE OF KANSAS,
MEMORANDUM AND ORDER
This matter was filed pro se as a civil rights action pursuant
to 42 U.S.C. § 1983 by a Kansas inmate.
It is before the court for
screening of plaintiff’s Second Amended Complaint (Doc. 7) and his
motions to proceed without prepayment of fees (Docs. 2 & 6).
court finds that plaintiff’s claims are essentially habeas in nature
and that he has not shown exhaustion of state remedies.
also finds that, to the extent plaintiff may be held to have raised
any claims cognizable under § 1983, his allegations fail to state a
action is dismissed without prejudice.
MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES IS GRANTED
Plaintiff has paid the initial partial filing fee assessed in
this case. As plaintiff was already informed, pursuant to 28 U.S.C.
§ 1915(b)(1), he remains obligated to pay the remainder of the
$350.00 district court filing fee. Being granted leave entitles him
to pay the filing fee over time through payments automatically
deducted from his inmate trust fund account as authorized by 28
U.S.C. § 1915(b)(2).
motions to proceed
without prepayment of fees (Docs. 2 & 6) are granted, and he is
assessed the remainder of the filing fee.
SCREENING OF SECOND AMENDED COMPLAINT
In its prior screening order, the court discussed the myriad
claims raised in plaintiff’s original and First Amended Complaints
and set forth the reasons they failed to state a claim under §
Plaintiff was given the opportunity to file a Second
Amended Complaint that cured these deficiencies.
As Mr. Heath was
advised, his Second Amended Complaint completely supercedes all
Accordingly, his prior complaints are
of no further effect and are no longer considered herein.
Because Mr. Heath is a prisoner, the court is required by
statute to screen his Second Amended Complaint and to dismiss this
complaint or any portion thereof that is frivolous, fails to state
a claim on which relief may be granted, or seeks relief from a
defendant entitled to immunity.
28 U.S.C. § 1915A(a) and (b).
pro se complaint is to be liberally construed and held to “less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
allegations in the complaint are accepted as true.
Blake, 469 F.3d 910, 913 (10th Cir. 2006).
complaint must offer “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action.”
Plaintiff’s original and First Amended Complaints were screened
together because he obviously failed to realize that his amended complaint
completely superceded his original complaint.
To avoid dismissal, the complaint’s “factual allegations
must be enough to raise a right to relief above the speculative
FACT ALLEGATIONS AND CLAIMS
Plaintiff’s Second Amended Complaint is again prolix with very
few factual allegations.2
Plaintiff alleges that he was convicted
of felony murder and sentenced to 15 years to life.
He also alleges
that he was seen by the Kansas Parole Board (KPB) in 2010 and denied
nature/circumstances” of his offense. He repeatedly alleges that he
The following factual background is from the court’s prior order:
Mr. Heath was convicted in 1996 of felony murder and child abuse, and
was sentenced to consecutive terms of life imprisonment and 68
In 1998, the Kansas Supreme Court (KSC) affirmed his
conviction for first-degree murder but reversed his conviction for
abuse of a child and vacated his sentence for that offense, holding
it was multiplicious.
In October 2010 (Heath) became eligible for parole . . . but the KPB
denied his application for parole. Plaintiff exhibited a copy of the
KPB’s Notice of Action (NOA) dated April 4, 2011, which provided in
After considering all statutory factors, the decision of
the Kansas Parole Board is: pass to October 2015. Pass
reasons: serious nature/circumstances of crime; violent
nature of crime. objections.
Extended pass reasons:
Inmate has been sentenced for a class A or B felony, or
an off grid felony, and the Board makes a special finding
that a subsequent parole hearing should be deferred for
five (5) years, because it is not reasonable to expect
that parole would be granted at a hearing if held before
then for the following reasons: the amount of time served
is insufficient based on the severity of the crime and
will devalue the victim; the inmate’s crime resulted in
multiple victims and caused lasting impact on those
victims; the inmate has not demonstrated behavioral
insights necessary to decrease his risk to re-offend; the
inmate’s conduct during the commission of the crime
manifested in excessive brutality of the victim; the
victim was particularly vulnerable due to his age and
relationship to the inmate.
Complaint/Memorandum (Doc. 1), Attach. 2.
is no public threat.
Plaintiff does not present each of his claims as a separate
count followed only by those supporting facts and arguments relevant
to that claim. Instead, he includes a couple arguments or claims in
the section for naming defendants, a few more in the background
section, some in the section for requesting relief, and several in
a lengthy Memorandum attached to his complaint.
In his Memorandum,
he includes at least 21 different headings, yet never specifies more
than the three counts in his form complaint.
Many of his strewn-
about arguments are conclusory and repetitive. Having carefully and
attachments, the court finds that Mr. Heath raises the following
main claims in his Second Amended Complaint: (1) he has a protected
liberty interest in parole under state statutes and the Privileges
or Immunities Clause of the 14th Amendment; (2) the reasons provided
by the KPB in its Notice of Action (NOA) for denying plaintiff’s
parole application are too conclusory to provide sufficient notice
and therefore violate federal due process; (3) the KPB violated
Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny in that
it enhanced his sentence based upon the same aggravating facts as
were used by the Kansas Legislature to set the punishment for his
crime; and (4) the Kansas parole statute is unconstitutional because
it violates the rule of Apprendi in that it authorizes the KPB to
make findings of fact beyond those found by the jury and use them to
increase an inmate’s punishment.
PLAINTIFF’S CLAIMS ARE HABEAS IN NATURE
Complaint that “his allegations appear to be in the nature of habeas
corpus claims” and “[u]nless he can allege sufficient facts in a
Second Amended Complaint to present a plausible claim for relief
under . . . § 1983, this action will be construed . . . as one
challenging the execution of his sentence under 28 U.S.C. § 2241.”
He does not acquiesce in treatment of this action as a § 2241
challenging the denial of his parole on some similar grounds, which
is currently pending.
See Heath v. McKune, No. 11-3194-SAC.
addition, he filed his Second Amended Complaint herein, which does
little if anything to cure any deficiencies, but merely reargues
some of his prior claims as well as raises a completely new main
He does couch his claims in more general terms and no longer
emphasizes his exemplary conduct in prison.
As was fully explained in the screening order, when a state
prisoner “seeks a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his sole
federal remedy is a writ of habeas corpus.”
Reed v. McKune, 298
F.3d 946, 953 (10th Cir. 2002)(citing Preiser v. Rodriguez, 411 U.S.
475, 500 (1973)). “This requirement is applicable to a challenge to
a constitutional defect in an individual parole hearing where the
remedy lies in providing a new parole hearing.”
Id.; Hererra v.
Harkins, 949 F.2d 1096, 1097 (10th Cir. 1991)(Where a prisoner
challenges “a constitutional defect in an individual parole hearing,
[and] where the remedy lies in providing a new parole hearing, [the]
prisoner must file a habeas petition.”).
constitutional defects in his individual parole proceedings and
specifically requests an immediate, new parole hearing free of those
His main claims now rest on the premise that he was
Plaintiff’s general assertions that the parole
procedures now set forth in K.S.A. § 22-3717(g) and applied by the
KPB are unconstitutional do not extinguish the habeas nature of his
He has added a terse request for an order requiring the KPB
principles announced in Apprendi and its progeny “in all future
parole hearings for all.”
The court is not convinced, however, by
this general request that this action properly proceeds under §
The court finds that Mr. Heath’s claims are habeas in nature
and therefore must be raised in a § 2241 habeas petition.
further finds that plaintiff has failed to provide sufficient,
additional facts or authority showing that his challenges to the
KPB’s denial of parole are properly litigated in this § 1983
Plaintiff adds nothing to counter the following holding and authority
in the court’s screening order:
[A] challenge to the denial of parole is an attack upon the execution
of the inmate’s sentence that must be litigated in a habeas corpus
petition filed pursuant 28 U.S.C. § 2241. Preiser v. Rodriguez, 411
U.S. 475, 489 (1973); Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir.
2002); U.S. v. Furman, 112 F.3d 435, 438 (10th Cir. 1997), cert.
denied, 513 U.S. 1050 (1994); Johnson v. Kansas Parole Bd., 419
Fed.Appx. 867, 869 (10th Cir. 2011)(unpublished)(unpublished decisions
are not cited herein as precedent, but only as persuasive
authority)(citing Henderson v. Scott, 260 F.3d 1213, 1214 (10th Cir.
2001), cert. denied, 535 U.S. 1063 (2002)); Ellibee v. Feliciano, 374
Fed.Appx. 789, 791 (10th Cir. 2010)(unpublished)(“[A] § 2241 habeas
petition is appropriate where a prisoner seeks ‘either immediate
release from prison or the shortening of confinement’.”); Reed, 298
F.3d at 953 (citing Preiser, 411 U.S. at 500)(State prison inmate who
sought injunctive relief to compel parole board officials to release
him on parole had to proceed via habeas corpus petition rather than
§ 1983.); see also Powell v. Ray, 301 F.3d 1200, 1201 (10th Cir.
2002), cert. denied, 538 U.S. 927 (2003).
PLAINTIFF FAILS TO DEMONSTRATE EXHAUSTION
Were the court to go ahead and construe this action as a § 2241
petition, it would be dismissed for failure to show exhaustion. Mr.
Heath was clearly advised that before raising habeas corpus claims
28 U.S.C. § 2254; Johnson, 419 Fed.Appx. at 869-70
(citing see Coleman v. Thompson, 501 U.S. 722, 730–31 (1991));
Ellibee, 374 Fed.Appx. at 793 (“A § 2241 habeas petitioner is
action.”)(citing Montez v. McKinna, 208 F.3d 862, 866 (10th Cir.
2000)); Jacobs v. Cushinberry, 44 Fed.Appx. 889, 890-91 (10th Cir.
He was directed to show that he had fully
exhausted both administrative and judicial remedies on all his
challenges to the parole decision in his case.
He was warned that
if he failed to show exhaustion within the time allotted, this
action could be dismissed.
Mr. Heath’s allegation that he wrote a letter to the KPB
requesting a new hearing does not demonstrate that he fully and
properly exhausted all available administrative remedies.
not allege facts indicating that he timely followed the requisite
steps to administratively appeal the decision of the KPB and that he
raised all claims he now presents herein in that appeal.
Nor has plaintiff alleged facts indicating that he filed a
state habeas petition in the appropriate state district court
raising all claims presented herein that was denied, then through
proper procedures appealed that denial to the state appellate
courts, and ultimately to the KSC.4
He shows only that he filed a
mandamus action directly in the KSC, and that this matter remains
The court concludes that Mr. Heath has failed to meet his
burden of showing that he properly exhausted all available state
remedies on all his claims before he filed this action in federal
This action is dismissed on this basis.
PLAINTIFF FAILS TO STATE A CLAIM UNDER § 1983
To the extent that any of plaintiff’s claims might be construed
as properly litigated in this civil rights action, such claims are
dismissed because plaintiff’s allegations and arguments in his
Second Amended Complaint utterly fail to present a plausible federal
Claim of Liberty Interest in Parole
Plaintiff repeats his claims already rejected by this court,
that the KPB is required by K.S.A. §§ 75-5201 and 75-5210a “to
promptly return all citizens to private life consistent with public
safety” and that under these statutes he has an entitlement to
parole protected by due process.
He argues that labeling parole as
a privilege does not “pervert constitutional due process” and that
the “privilege of parole” in Kansas is protected by “the privileges
and immunity Clause of the Fourteenth Amendment mandated under KSA
75-5201, the Penal Reform Act.”
He asserts that the Kansas Penal
Generally, the exhaustion prerequisite is not satisfied unless all
claims asserted have been presented by “invoking one complete round of the State’s
established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838,
842,45 (1999)(“A state prisoner must give the state courts an opportunity to act
on his claims before he presents those claims to a federal court in a habeas
petition.”). That means the claims must have been “properly presented” as federal
constitutional issues “to the highest state court.” See Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The burden is on the habeas
petitioner to demonstrate that he has satisfied the exhaustion prerequisite.
Reform Act mandates an emphasis on rehabilitation of inmates, and
that the KPB’s focus has improperly turned from rehabilitation
assessment to punishment. He repeats his contention that Gilmore is
no longer “applicable.”
None of petitioner’s arguments overcomes the court’s previous
holding that any claim for relief flowing from his due process
arguments has no legal merit. As the court previously explained, an
inmate’s due process rights are triggered only if he has been
deprived of a protected liberty or property interest.
Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989).
conditionally released before the expiration of a valid sentence.”
Swarthout v. Cooke, ––– U.S. ––– at –––, 131 S.Ct. 859, 178 L.Ed.2d
732 at *2 (2011)(“There is no right under the Federal Constitution
to be conditionally released before the expiration of a valid
sentence, and the States are under no duty to offer parole to their
prisoners.”). Therefore, an inmate does not have a liberty interest
in parole that is created by the U.S. Constitution.
rehabilitation and its culmination in the “privilege of parole”
arising from his right as a U.S. citizen to the pursuit of happiness
Immunities Clause or the Due Process Clause.
The right to live and
seek employment anywhere, which plaintiff asserts encompasses the
right to parole, is obviously among those rights that are lawfully
curtailed during a term of imprisonment.
protected liberty interest by including mandatory language in its
parole statutes, which limits the parole board’s discretion or
otherwise creates a presumption of release. Greenholtz, 442 U.S. at
8-11; see Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir. 1994)(A
interest that is entitled to due-process protection.); Straley v.
Utah Bd. of Pardons, 582 F.3d 1208, 1212 (10th Cir. 2009)(“A liberty
interest may arise from the Constitution itself, by reason of
guarantees implicit in the word ‘liberty,’ or it may arise from an
expectation or interest created by state laws or policies.”), cert.
denied, 130 S.Ct. 1737, 176 L.Ed.2d 213 (2010).
The Kansas Supreme
Court (KSC), however, has repeatedly “held that the Kansas parole
statute does not create a liberty interest protected by the Due
Process Clause of the Fourteenth Amendment.” Ellibee, 374 Fed.Appx.
at 791-92 (citing see Gilmore v. KPB, 243 Kan. 173, 756 P.2d 410,
415, cert. denied, 488 U.S. 930 (1988)(“K.S.A. 1987 Supp. 22-3717
does not create a liberty interest in parole.”); see also Board of
Pardons v. Allen, 482 U.S. 369, 379 n. 10 (1987)(“[S]tatutes or
regulations that provide that a parole board ‘may’ release an inmate
on parole do not give rise to a protected liberty interest.”).
As this court noted in its screening order, the language of
amended K.S.A. § 22-3717(g), which expressly provides that “the
Kansas parole board may release on parole those persons confined in
amendment, that the relevant Kansas statutes create no liberty
interest in parole.
See citations in M&O (Doc. 5) at 17-18.
does the language of either K.S.A. § 75-5201 or § 75-5210a limit the
discretion of the KPB in any way or create a presumption of release.
statutes, as requiring an inmate’s release on parole unless he
presents a threat to public safety and as creating a liberty
interest in rehabilitation as well as prompt release on parole,
simply have no support in the statutory language or pertinent case
The Kansas courts continue to hold that “[p]arole itself is a
matter of grace and amounts to a privilege rather than a right.”
2011)(unpublished)(citing Gilmore, 243 Kan. at 180).
As the Tenth
Circuit has reasoned:
“[T]he Kansas statute merely empowers the Board to place
one on parole when the Board, in the exercise of its
discretion, believes that the interests of the prisoner
and the community will be served by such action.” (Citing
Gilmore, 756 P.2d at 414).
Trumbly v. KPB, 8 Fed.Appx. 857, 859 (10th Cir. 2001)(unpublished).
And, the KSC’s interpretation of its own statutes is binding on the
federal court “absent some conflict with federal law or overriding
Sac & Fox Nation v. Pierce, 213 F.3d 566, 577
(10th Cir. 2000); Trumbly, 8 Fed.Appx. at 859. In short, “[b]ecause
parole is discretionary in Kansas, (Mr. Heath) cannot invoke the
procedural guarantees of the Due Process Clause.”
Ellibee, 374 at
792 (citing see Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983)).
The Tenth Circuit has also plainly held that “unless there is
a liberty interest in parole, the procedures followed in making the
parole determination are not required to comport with standards of
Jones v. Hannigan, 1 Fed.Appx. 856, 859
(10th Cir. 2001)(unpublished)(quoting O’Kelley v. Snow, 53 F.3d 319,
321 (11th Cir. 1995)); Shirley v. Chestnut, 603 F.2d 805, 807 (10th
The Circuit has reasoned:
As the Kansas Court of Appeals noted, “[t]here being no
liberty interest in parole, it cannot be argued that the
denial of parole, whenever it is done or under whatever
statute involved, disadvantages a prisoner.”
Trumbly, 8 Fed.Appx. at 859.
Thus, even assuming Mr. Heath could
prove that he was denied certain process during his state parole
proceedings, he would be entitled to no relief in federal court
because there was no federal right at stake.
S.Ct. at 862-63.
See Swarthout, 131
The court concludes that plaintiff’s assertion of
being denied federal due process in his Kansas parole proceedings
presents no cognizable claim for relief in federal court.
Greenholtz, 442 U.S. at 7; Crump v. Kansas, 143 F.Supp.2d 1256, 1262
Claim that NOA Violated Due Process
As noted in the screening order, the KPB ordered a five-year
pass in plaintiff’s case, finding that the amount of time served was
insufficient based upon the severity of the crime and would devalue
the victim; the inmate’s crime resulted in lasting impact upon
insights necessary to decrease his risk to re-offend; the inmate’s
conduct during the commission of the crime manifested in excessive
brutality of the victim; and the victim was particularly vulnerable
due to his age and relationship to the inmate.
Plaintiff repeats his argument that the reasons provided by the
conclusory to provide adequate notice or opportunity to respond. He
again complains that the KPB impermissibly relied upon the facts of
his commitment offense including its serious nature and violent
circumstances; secret objections to his release, which he was not
allowed to refute; and extends his argument that the KPB’s reasons
“mirror” those utilized in setting criminal penalties.
that “the parole board should be required to articulate specific
facts and that said facts should relate not just to the crime which
he committed but his present attitude and condition, specifically as
it relates to rehabilitation” as “mandated under K.S.A. 75-5201 et
These assertions amount to due process claims that also fail
under the preceding analysis.
Most of these challenges to the NOA were discussed and found to
have no merit in the court’s prior screening order.
reiterates that the applicable statutory language authorized KPB
members to consider a wide range of information in deciding parole
applications. Challenges to the types of information relied upon by
the KPB in this case have been soundly rejected by the courts.
example, the Kansas Supreme Court has held that:
the nature of the crime is a consideration to be taken
into account and thus can be cited as a reason for denial
of parole . . . . The acts of one person in committing an
offense may be quite different and much less or much more
shocking and heinous than the acts of another person in
committing the same statutorily defined offense. Gilmore
v. Kansas Parole Board, 243 Kan. 173, 177, 756 P.2d 410
(1988), cert. denied 488 U.S. 930 . . . (1988).
Torrence v. Kansas Parole Board, 21 Kan.App.2d 457, 458-59, 904 P.2d
In Torrence, the board had denied parole for reasons
that included the “the serious nature and circumstances of the crime
objections to him being granted parole.” Id. at 458. These reasons
were held to be consistent with those approved by the KSC in
Gilmore, and to comply with K.S.A. 1993 Supp. § 22-3717.
Likewise, a parole board’s finding that the time served would
detract from the seriousness of the offense has expressly been
Denying parole because of “Aggravating Factors/Inadequate
Time Served (Circumstances of the Offense; Needs More Time),” is not
arbitrary or capricious and is not an abuse of discretion, but is
instead “a sufficient and proper reason” to deny parole.
v. Colorado State Bd. Of Adult Parole, 624 F.2d 172, 174 (10th Cir.
Moreover, “a parole board’s designation of ‘objections’ as
“sufficiently specific,” and “the parole board was not required to
identify who objected to the defendant’s parole and the specific
reasons behind the objections.”
Smith v. Feliciano, 231 P.3d 588,
2010 WL 2245994 (Kan.App. 2010)(unpublished).
As the court found in its screening order, the circumstances of
the offense as well as comments of the victim’s family and the
public are expressly listed as factors to be considered at a Kansas
See Branson v. McKune, 27 Kan.App.2d 301, 305-06,
3 P.3d 572 (Kan.App. 2000).
The KPB plainly considered and relied
upon the statutory factors and informed Heath of its reasons for
Where a state parole board gives valid reasons for
a parole decision, a federal court does not assume the board relied
on invalid factors.
See Fay v. Chester, 413 Fed.Appx. 23, 28 (10th
Cir. 2011)(unpublished)(citations omitted).
Moreover, “Where the
denial of parole rests on one constitutionally valid ground, the
Board’s consideration of an allegedly invalid ground would not
violate a constitutional right.”
Wildermuth v. Furlong, 147 F.3d
1234, 1236 (10th Cir. 1998).
Furthermore, the fact that a parole board’s reasons are not
explained in any great detail does not render them insufficient.
The Kansas courts have “approved the use of standardized language”
in providing notice of the reasons for denial of parole.
v. Kansas Parole Bd., 238 P.3d 331, *2 (Kan.App. Sept. 10, 2010,
unpublished), review denied (Kan. Nov. 8, 2010).
It is well-
recognized that a decision whether to release a prisoner on parole
“multiplicity of imponderables.”
Greenholtz, 442 U.S. at 10.
would be discordant to require unduly specific and detailed reasons
from a Board vested with a subjective, predictive, and experimental
Schuemann, 624 F.2d at 174.
The reasons give by the KPB
were credible and are sufficient under Kansas law. See Torrence, 21
Kan.App.2d at 458-59 (Parole Board’s use of statutory language as
reasons for denying parole was sufficient compliance with statute
which required notification to the inmate in writing of specific
reasons for not granting parole).
Even where a State is found to have created a liberty interest,
the Constitution requires nothing more, when parole is denied, than
the inmate being given an opportunity to speak at a hearing and
informed “in what respects he falls short of qualifying for parole.”
Greenholtz, 442 U.S. at 16. Finally, the court notes in response to
circumstances of his offense or required it to clearly instruct him
as to how his future conduct could secure a grant of parole.
court concludes that plaintiff has alleged no additional facts in
his Second Amended Complaint showing either that the KPB violated
any federal constitutional right by relying upon the information and
findings in its NOA or that his challenges to the NOA should not be
dismissed for reasons already stated.
Claims that K.S.A. 22-3717(g) and the KPB Decision Violated
Plaintiff’s new, main constitutional claims are that the KPB in
making its determination that he is unsuitable for parole, as
increased his sentence in violation his Sixth Amendment right to a
jury trial and the rule in Apprendi v. New Jersey, 530 U.S. 466, 490
In Apprendi, the Supreme Court established the rule that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
Id. at 490.
This claim is based upon at least two faulty premises.
plaintiff incorrectly assumes that the rule of Apprendi applies to
fact-finding in parole proceedings. The Apprendi rule is explicitly
requirement of proof beyond a reasonable doubt contained in the Due
See id. at 476–77; Cunningham v. California, 549
U.S. 270, 281 (2007); Blakely v. Washington, 542 U.S. 296, 305–06
The rule was applied in Apprendi and its progeny in the
context of sentencing after a criminal conviction.
Court has expressly recognized
that “[p]arole arises after the end
of the criminal prosecution, including imposition of sentence.”
Morrissey v. Brewer, 408 U.S. 471, 480 (1972).
There is no right
under the Sixth Amendment to have facts determined in connection
with a parole violation found by a jury.
See Unites States v.
Carlton, 442 F.3d 802, 807-10 (2nd Cir. 2006)(no right to jury trial
for revocation of supervised release); United States v. Hinson, 429
F.3d 114, 118 (5th Cir. 2005)(same), cert. denied, 547 U.S. 1083
2005)(“The law is clear that once the original sentence has been
imposed in a criminal case, further proceedings with respect to that
sentence are not subject to Sixth Amendment protections.”); see also
Clifford v. Kane, 2007 WL 1031148, *7 (N.D.Cal. April 3, 2007,
unpublished)(“No case in the Apprendi line has considered the
requirements for parole determinations” and therefore the “proposed
application of Apprendi and its progeny to parole hearings is not
‘clearly established Federal law, as determined by the Supreme Court
of the United States’” and thus cannot be the basis for habeas
The court has no difficulty concluding
that plaintiff was not constitutionally entitled at his parole
suitability hearing to a jury trial or to proof of facts beyond a
Accordingly, Mr. Heath’s claims that the rule of
Apprendi applied to and was violated in those proceedings is found
to have no merit.
See United States v. Knights, 534 U.S. 112, 120
(2001)(right to jury trial and proof beyond a reasonable doubt
inapplicable in probation revocation proceedings); United States v.
Huerta–Pimentel, 445 F.3d 1220, 1225 (9th Cir.), cert. denied, 549
U.S. 1014 (2006)(“Nor does a judge’s finding, by a preponderance of
the evidence, that defendant violated the conditions of supervised
release raise Sixth Amendment concerns.
There is no right to jury
trial in such post-conviction determinations.”); Rush v. Kane, 2007
WL 4166032, *7 (N.D.Cal. Nov.19, 2007,unpublished)(no Supreme Court
law clearly establishes applicability of Apprendi and its progeny to
parole suitability determinations).
Plaintiff’s second faulty premise is that the decision of the
KPB increased his sentence.
Application of the Kansas parole
statutes to Mr. Heath did “not increase his punishment for he
possesses no vested right in a particular parole date or parole
hearing eligibility date.”
See Chambers v. Colorado Dept. Of
Corrections, 205 F.3d 1237, 1242 (10th Cir.), cert. denied, 531 U.S.
962 (2000); see also Woo v. Powers, 2008 WL 4361246, *11, n. 12
(C.D.Cal. Sept. 15, 2008, unpublished)(“Petitioner was sentenced to
an indeterminate term of fifteen years to life with the possibility,
not the guarantee of parole. Accordingly, the denial of parole does
commitment offense” and “is not a punishment in addition to that
which he faced when he was convicted in judicial proceedings.”).
The fact that Mr. Heath’s sentence was not increased is another
reason that the Apprendi line of cases is inapplicable here.
Furthermore, because the Board did not use any fact to lengthen
Mr. Heath’s sentence beyond his statutory maximum, the Apprendi rule
would not be violated even if it were found to apply.
v. Woodford, 269 Fed.Appx. 670, 671 (9th Cir. 2008)(unpublished)
(Board’s denial of parole did not violate Apprendi or Blakely
“because the Board did not increase [the petitioner’s] sentence
beyond the statutory maximum of life imprisonment for his crime of
second degree murder”).5
The sentencing court in this case imposed
a term of fifteen years to life, not a determinant sentence of
Thus, petitioner's maximum sentence is life in
prison, and the jury verdict expressly authorized his imprisonment
for as long as life.
The KPB’s denial of his parole did not impose
a term beyond his 15 years to life sentence.
resulted in a sentence beyond what the jury’s verdict would allow.
Plaintiff also assumes without legal basis that he had an
entitlement to a grant of parole at his first parole eligibility
It is plain and long-settled that a Kansas inmate has no
such entitlement, since he has no right to release at any time prior
to the service of his full sentence.
See Chambers, 205 F.3d at 1242
(Inmate possessed “no vested right in a particular parole date or
eligibility to be considered for parole and the concomitant right to
a parole (eligibility) hearing with the right to be released on
See Epperson v. Gammon, 2008 WL 4203722, *3 (E.D. Mo.
A parole board’s decision to deny parole “does
not constitute an additional punishment for the same offense,” does
not change the length of a prisoner’s sentence,” and does not
increase the penalty for the offense of conviction.
See Carroll v.
Simmons, 89 Fed.Appx. 658, 663 (10th Cir. 2004)(unpublished)(citing
Mahn v. Gunter, 978 F.2d 599, 602 n. 7 (10th Cir. 1992); Kell v. U.S.
The Sixth Amendment gives a criminal defendant the right to have a
jury find any fact that increases the maximum sentence, not the minimum sentence.
See McMillan v. Pennsylvania, 477 U.S. 79 (1986). Though McMillan was decided
before the Apprendi line of cases, this aspect of “Sixth Amendment jurisprudence”
remains intact. See Harris v. United States, 536 U.S. 545, 568 (2002)(rejecting
effort to overrule McMillan in the aftermath of Apprendi).
determinations are not viewed as criminal punishment subject to the
Double Jeopardy Clause.”)).
In his Second Amended Complaint and attached Memorandum,
plaintiff repeats several arguments without designating them as
separate counts that were already rejected in the court’s prior
screening order, including violation of the ex post facto clause,
denial of equal protection, that K.S.A. § 22-3717 is a “Bill of
Pains and Penalties,6 and that the Kansas “Penal Reform Act” created
a “social contract” protected by due process.
Mr. Heath does not
Instead, he simply disagrees with the court’s holdings
and repeats his arguments. Plaintiff’s bald legal theories need not
be accepted as true because they are not allegations of fact.7
Plaintiff’s repeated claims that K.S.A. § 22-3717 is a “Bill of Pains
and Penalties,” and ex post facto remain conclusory and unconvincing. They appear
to be based upon Article I, section 10 of the U.S. Constitution, which provides
that “[n]o State shall . . . pass any Bill of Attainder [or] ex post facto Law.
. . .” U.S. Const., art. I, § 10, cl. 1. “In its most basic application, the
clause precludes Congress and the states from enacting laws that criminalize an
act already performed.” Schroeder v. Tilton, 493 F.3d 1083, 1087 (9th Cir. 2007);
see also Serrato v. Clark, 486 F.3d 560, 571 (9th Cir. 2007)(retroactive
alteration of parole provisions also implicate the clause).
“A law is an
unconstitutional bill of attainder if it ‘legislatively determines guilt and
inflicts punishment upon an identifiable individual without provision of the
protections of a judicial trial.’” United States v. Lujan, 504 F.3d 1003, 1006
(9th Cir. 2007)(quoting Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468 (1977)).
Here, the KPB did not determine plaintiff’s guilt or inflict punishment at his
parole suitability hearing. The issues of plaintiff’s guilt and punishment were
determined after a judicial trial in state court.
Accordingly, the bill of
attainder clause is simply inapplicable to petitioner’s parole suitability
Many of plaintiff’s legal theories are not supported by sufficient
factual allegations. The factual allegations in a complaint “must be enough to
raise a right to relief above the speculative level.” Bell, 550 U.S. at 555. No
“heightened fact pleading” is required under this standard, “but only enough facts
to state a claim to relief that is plausible on its face.” Id. at 570.
reviewing the sufficiency of the complaint, the court presumes all of the
plaintiff’s “well-pleaded facts” but not “conclusory allegations” to be true.
court concludes that plaintiff has failed to provide convincing
argument or legal authority to show that these claims should not be
Finally, the court again notes that a violation of state law
does not give rise to a federal cause of action under § 1983.
Malek, 26 F.3d at 1016.
Thus, any assertion by plaintiff that a
state statute was violated presents no claim under § 1983.
DEFENDANTS ARE IMMUNE TO SUIT
The only defendants named in the caption of plaintiff’s Second
Amended Complaint are the State of Kansas and the Kansas Parole
Rule 10 Of the Federal Rules of Civil Procedure
plaintiff elsewhere also clearly names Robert Sanders, Patricia
Biggs and Tom Sawyer, KPB Members, as additional defendants; and
they have been docketed as named defendants.
states that he seeks declaratory and injunctive relief only, but in
his actual request for relief he again inserts a claim for damages.
He was informed in the screening order that his damages claims must
be dismissed based upon immunity, and because these claims are
premature and barred by the principles in Heck v. Humphrey, 512 U.S.
477, 486-87 (1994) and its progeny.
See Reed, 298 F.3d at 953-54
(citing see also Edwards v. Balisock, 520 U.S. 641, 648 (1997);
McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001).
A pro se plaintiff’s
complaint must be broadly construed. Haines v. Kerner, 404 U.S. 519, 520 (1972).
However, the court reviewing the sufficiency of a complaint is not to “supply
additional factual allegations to round out a plaintiff’s complaint or construct
a legal theory on a plaintiff's behalf.” Whitney v. State of N.M., 113 F.3d 1170,
1173-74 (10th Cir. 1997).
stemming from that decision, (he) must demonstrate that the decision
has previously been invalidated.”)(citing see Edwards, 520 U.S. at
646, 648)); Schafer v. Moore, 46 F.3d 43, 44-45 (8th Cir. 1995)(Heck
applies to § 1983 actions challenging denial of parole).
still alleges no facts demonstrating that the decision on his parole
application has already been invalidated.
His damages claims are
therefore dismissed as not cognizable under § 1983.8
ACTION IS DISMISSED
For all the foregoing reasons, the court concludes that this
action must be dismissed without prejudice on account of plaintiff’s
failure to exhaust his habeas claims and his failure to allege
sufficient additional facts to show that any of his claims are
viable under 42 U.S.C. § 1983.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Motions
to Proceed Without Prepayment of Fees (Docs. 2, 6) are granted.
IT IS FURTHER ORDERED that this action is dismissed and all
relief is denied, without prejudice.
IT IS FURTHER ORDERED that Mr. Heath is assessed the remainder
of the filing fee herein to be paid through payments automatically
deducted from his inmate account.
The clerk is directed to send a copy of this order to the
The Heck bar has been applied to claims for declaratory relief as
well. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005)(“a state prisoner’s §
1983 action is barred (absent prior invalidation)-no matter the relief sought
(damages or equitable relief), no matter the target of the prisoner’s suit . . .
if success in that action would necessarily demonstrate the invalidity of
confinement or its duration.”); Edwards, 520 U.S. at 648.
finance officer at the institution in which plaintiff is currently
§1915(b)(2), the Finance Office of the facility where plaintiff is
confined is directed by copy of this Order to collect twenty percent
plaintiff’s account exceeds ten dollars ($10.00) until the filing
fee has been paid in full. Plaintiff is directed to cooperate fully
with his custodian in authorizing disbursements to satisfy the
filing fee, including but not limited to providing any written
authorization required by the custodian or any future custodian to
disburse funds from his account.
IT IS SO ORDERED.
Dated this 28th day of December, 2011, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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