Trumbly v. Heimgardner et al

Filing 10

MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is dismissed and all relief is denied. Signed by Senior District Judge Sam A. Crow on 10/22/2013. (Mailed to pro se party Mikel E. Trumbly by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MIKEL E. TRUMBLY,
Petitioner,
v.

CASE NO. 11-3185-SAC

JAMES HEIMGARDNER, et al.,
Respondents.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed pursuant to
28 U.S.C. § 2241. Petitioner, a prisoner in state custody, proceeds
pro se. He seeks habeas corpus relief following the denial of parole.
Background
In 1980, petitioner was convicted of first-degree murder and
aggravated kidnapping in the District Court of Pratt County, Kansas.
In 1999, he was convicted of attempted aggravated battery in the
District Court of Reno County, Kansas. The present action arises from
the November 2007 denial of parole by the Kansas Parole Board (“KPB”).
The Kansas Court of Appeals described the denial of parole as
follows:
In Trumbly’s parole review, the board declined to release
him based on the violent nature of the underlying offense
and his prison record that included both criminal and
disciplinary violations. At least some of the disciplinary
issues arose between Trumbly’s next to last appearance
before the board and his appearance in 2007. In other words,
Trumbly’s record incurred additional blemishes before his
2007 hearing. The board also questioned the adequacy of
Trumbly’s parole plan and of the steps he had taken within
the correctional system to reduce the chances he would
reoffend if released. Trumbly v. Roberts, 248 P.3d 784

(Table), 2010 WL 174073 at **1-3 (Kan. Ct. App. March 25,
2011)(unpublished order).
Finding petitioner had not established any substantive, legal
ground to overturn the denial of parole, the Kansas Court of Appeals
denied relief.
Discussion
“Habeas corpus review is available under § 2241 if one is
‘in custody in violation of the Constitution or laws or treaties
of the United States.’” McIntosh v. U.S. Parole Comm’n, 115 F.3d
809, 811 (10th Cir. 1997)(quoting

§ 2241(c)(3)). An action

pursuant to § 2241 is the proper means to challenge the denial
of parole. Henderson v. Scott, 260 F.3d 1213, 1214 (10th Cir.
2001). In such an action, “the district court reviews the Parole
Board’s action for abuse of discretion, asking whether the
Board’s action resulted in an abridgement of the petitioner’s
constitutional rights.” Wildermuth v. Furlong, 147 F.3d 1234,
1236 (10th Cir. 1998). Under this standard, the federal court does
not reweigh evidence, rule on credibility, or substitute its
judgment for the judgment of the parole board. Fiumara v.
O’Brien, 889 F.2d 254, 257 (10th Cir. 1989), cert. denied, 495
U.S. 958 (1990).
Finally, the court must be mindful that the decision whether
to grant parole is “subtle and depends on an amalgam of elements,
some of which are factual but many of which are purely subjective
appraisals by the Board members based upon their experience with
the difficult and sensitive task of evaluating the advisability

of parole release.” Greenholtz v. Inmates of Nebraska Penal and
Correctional Complex, 442 U.S. 1, 9-10 (1979).
In Kansas, parole is a matter of grace and not a right.
Gilmore v. Kansas Parole Board, 756 P.2d 410 (Kan.), cert.
denied, 488 U.S. 930 (1988). Accordingly, the KPB has broad
discretion in considering candidates for parole, and a Kansas
prisoner does not have a protected interest in early release.
See Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1214 (10th Cir.
2009)(“the mere existence of a purely discretionary parole
authority creates no entitlement and, therefore, no concomitant
federal due process interest”).
To the extent petitioner seeks relief on the ground that
the decision of the KPB was arbitrary and capricious, the court
finds no basis to grant relief. The reasons supporting the
decision are identified as “serious nature/circumstances of
crime; violent nature of crime; objections; new crimes in
institution; disciplinary reports since last seeing the KPB.”
(State records, p. 45, revised KPB Action Notice dated January
29, 2008.) While petitioner argues he has completed sex offender
treatment and has advanced his education while in custody, both
commendable achievements, the reasons cited by the KPB are
germane to his suitability for release and are not contested.
Because the record presents a rational basis for the decision
to deny parole, the court may not disturb that decision under
the limited standard of review that applies to this action.

IT IS, THEREFORE, BY THE COURT ORDERED the petition for
habeas corpus is dismissed and all relief is denied.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED:

This 22nd day of October, 2013, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge