Fryar v. Smith et al

Filing 15

MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 7/12/2017. Court will deny Plaintiff's petition for a writ of habeas corpus.cc: Plaintiff, pro se; Counsel (RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
STANLEY FRYAR

PETITIONER

CIVIL ACTION NO. 3:16-CV-00370-CRS

v.

WARDEN AARON SMITH

RESPONDENT

MEMORANDUM OPINION

I.

Introduction

Stanley Fryar filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241,
ECF No. 1. Warden Aaron Smith answered, ECF No. 12. Fryar did not reply. The magistrate
judge made findings of fact, conclusions of law, and a recommendation that Fryar’s petition be
dismissed with prejudice and that Fryar be denied a certificate of appealability. R. & R., ECF
No. 13. Fryar makes two objections to the magistrate judge’s analysis: (1) he argues that the
magistrate judge misconstrued his petition as a 28 U.S.C. § 2254 petition, rather than one under
28 U.S.C. § 2241; and (2) he objects to the magistrate judge’s interpretation and use of
Carpenter v. Department of Corrections, No. 3:11-42-DCR, 2012 WL 2021718 (E.D. Ky. June
5, 2012). Obj. R. & R. 1–3, ECF No. 14.
For the reasons below, the Court will adopt the magistrate judge’s report and
recommendation in full. The Court will deny Fryar’s petition for a writ of habeas corpus. The
Court will deny Fryar a certificate of appealability.
II.

Findings of Fact

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In May of 2000, Fryar pled guilty to various charges of sodomy and sexual abuse in
Boone County, Kentucky Circuit Court, and he was sentenced to a 20-year term of
imprisonment. R. & R. 1, ECF No. 13. From January 2001 until early September 2010, Fryar
was a resident at the Eastern Kentucky Correctional Complex (EKCC), where he claims he was a
“model prisoner” who lived in the honor dorm for approximately 4 ½ years. Id. at 2. In 2010,
Fryar was transferred to the Kentucky State Reformatory (KSR). Id.
On July 16, 2013, following his transfer, Fryar wrote a letter to Warden Gary Beckstrom
requesting meritorious good time credits for his time spent at EKCC. Id. On July 19, 2013,
Warden Beckstrom wrote a memorandum to Fryar, explaining that prison policy prohibited him
from re-evaluating the decision of the prior warden at EKCC concerning the award or denial of
meritorious good time. Id.
Fryar sought administrative appellate review of Warden Beckstrom’s decision through
the Kentucky Department of Corrections (KDOC) Office of Offender Information Services
(OIS) as required by Corrections Policies and Procedures (CPP) 17.4. Id. On December 11,
2013, OIS Branch Manager Ashley Sullivan wrote a letter informing Fryar that a change in
Kentucky Revised Statutes § 454.415 required Fryar to first contact the OIS staff at his
institution before taking the appeal to the Central Office. Id.
On December 19, 2013, Fryar wrote to the OIS staff at his institution to request
meritorious good time for his time spent at EKCC. Id. at 3. On December 26, 2013, OIS
Specialist William Mustage wrote:
Please understand that Meritorious Good Time (MGT) is a privilege, not a right.
Even though a person may be eligible to be reviewed for MGT, this does not
guarantee an award. KRS 197.045 gives the Commissioner discretion in awarding
MGT. The commissioner has extended that discretion to the institutional staff.
The Warden is the person at any institution whom will either approve or
disapprove any MGT that is recommended by program staff. Just because a
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program staff member recommends MGT does not guarantee that the individual
will receive it. You were denied MGT for the time period in question for nonprogram participation and blocked for a period of twelve (12) months) [sic] on
more than one occasion.
Upon consideration from Warden Clark Taylor, it has been decided to not lift the
MGT block/denial which was placed while you were housed at the Eastern
Kentucky Correctional Complex. Following the original denial and KSR’s
consideration, it is recommended that you contact the Warden at that institution
where it was originally denied or blocked, as he/she may also choose to
reconsider it.
Id. On January 2, 2014, Fryar against sought administrative review of this decision under CPP
17.4. Id. On January 27, 2014, Sullivan wrote back, informing Fryar that she had reviewed
Mustage’s response and concurred with his findings. Id. She advised Fryar of his right to appeal
her decision to the sentencing court within thirty days of exhausting his administrative remedies
under Kentucky Revised Statutes § 532.120(8). Id.
On March 11, 2014, Fryar moved under Kentucky Revised Statutes § 532.120(8) for an
order directing application of meritorious good time credits in the Boone Circuit Court. Id. at 4.
In his motion, Fryar alleged that he never received these credits due to clerical error on the part
of EKCC staff. Id. On April 9, 2014, the Boone Circuit Court denied Fryar’s motion. Id. The
judge wrote, “KRS 197.045(1)(b)(2) states that the Commissioner of the Department of
Corrections may award Meritorious Good Time Credit. Meritorious Good Time Credit is not a
right, and is given solely at the discretion of the Department of Corrections.” Id. Fryar filed a
notice of appeal and on May 9, 2014 was granted leave to proceed in forma pauperis. Id.
On appeal, Fryar argued that while “prisoners do not have a right to parole or goodtime
credits,” KDOC could not arbitrarily interpret state law to deny such credits. Id. The Court of
Appeals of Kentucky affirmed the trial court, stating:
KRS 197.045 states in part:

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(1) Any person convicted and sentenced to a state penal institution:
(b) May receive a credit on his or her sentence for:
1. Good behavior in an amount not exceeding ten (10) days for
each month served, to be determined by the department
from the conduct of the prisoner;
2. Performing exceptionally meritorious service or performing
duties of outstanding importance in connection with
institutional operations and programs, awarded at the
discretion of the commissioner in an amount not to exceed
seven (7) days per month; and
3. Acts of exceptional service during times of emergency,
awarded at the discretion of the commissioner in an amount
not to exceed seven (7) days per month.
KRS 197.045(1)(b) (emphasis added). It is firmly established that awards of
meritorious good time credits are purely in the discretion of the Department of
Corrections. In Hill v. Thompson, 297 S.W.3d 892, 897 (Ky.App.2009), this court
held that “such awards are entirely discretionary and inmates possess no
automatic entitlement to them. Further, inmates do not have a liberty interest in
the receipt of meritorious good time. Hill at 897. See also Anderson v. Parker,
964 S.W.2d 809 (Ky.App.2009).
...
Because it is clear that any award of meritorious good time is purely at the
discretion of the Department of Corrections, and after reviewing the record,
finding no abuse of discretion on the part of the Department of Corrections or the
trial court, we must affirm. Mr. Fryar has no right to the award of any meritorious
good time, as it is clearly a privilege. This Court will not disturb the discretionary
findings of the Department of Corrections.
Id. at 4–6 (citing Fryar v. Commonwealth, No. 2014-CA-000776-MR, 2015 WL 2445117, at *1–
2 (Ky. Ct. App. May 22, 2015)). On February 10, 2016, the Supreme Court of Kentucky denied
Fryar’s motion for discretionary review. Id. at 6.
III.

Conclusions of Law

Fryar now petitions for a writ of habeas corpus, asserting that the Warden has unlawfully
denied him meritorious good time credits due to his inability to participate in a sex offender
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treatment program (SOTP) because his request for transfer from EKCC to a Kentucky
corrections facility that offers an SOTP program had been repeatedly denied. Id. at 1. He argues
that KDOC and the Commonwealth of Kentucky have unconstitutionally extended his prison
sentence in violation of the Due Process Clause of the United States Constitution. Pet. 5, ECF
No. 1. The magistrate judge recommended that Fryar’s petition be dismissed with prejudice and
that he be denied a certificate of appealability. R. & R. 9, ECF No. 13.
This Court “must determine de novo any proposed finding or recommendation to which
objection is made.” Rule 8 of the Rules Governing § 2254 Cases. 1 This Court “may accept,
reject, or modify any proposed finding or recommendation.” Id. Fryar makes two objections to
the magistrate judge’s analysis: (1) he argues that the magistrate judge misconstrued his petition
as a 28 U.S.C. § 2254 petition, rather than one under 28 U.S.C. § 2241; and (2) he objects to the
magistrate judge’s interpretation and use of Carpenter, 2012 WL 2021718. Obj. R. & R. 1–3,
ECF No. 14.
A. The Magistrate Judge’s Use of the Standard Under 28 U.S.C. § 2254
The magistrate judge stated, “Fryar has filed a petition for habeas corpus relief pursuant
to 28 U.S.C. § 2254” and proceeded to apply the standard under that statute. R. & R. 6, ECF No.
13. Fryar objects to the magistrate judge’s use of this standard. Obj. R. & R. 1–2, ECF No. 14.
He asserts that his petition “was certainly not a 2254 petition, but a 2241 petition concerning a
challenge or action which impacts the length of time he must stay in prison to satisfy the
sentence.” Id. at 2. He argues that the proper standard under 28 U.S.C. § 2241 should be applied.
Id.

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Rule 8 applies to § 2241 petitions pursuant to Rule 1(b) of the Rules Governing § 2254 Cases.
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Fryar is correct that he filed his petition under 28 U.S.C. § 2241. See Pet. 1, ECF No. 1.
Section 2241 is properly used for petitions which challenge “the manner in which a sentence is
executed.” Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998). Thus, the computation of
meritorious good time credits is a proper § 2241 challenge. See, e.g., Sullivan v. United States,
90 F. App’x 862, 863 (6th Cir. 2004). Accordingly, contrary to the magistrate judge’s conclusion
otherwise, Fryar’s petition for a writ of habeas corpus is one under 28 U.S.C. § 2241.
In the Sixth Circuit, however, state prisoners who proceed under 28 U.S.C. § 2241 do so
subject to the restrictions imposed by § 2254. Allen v. White, 185 F. App’x 487, 490 (6th Cir.
2006) (citing Greene v. Tenn. Dep’t of Corr., 265 F. 3d 369, 371 (6th Cir. 2001)). “While a
federal prisoner may collaterally attack the lawfulness of his sentence under § 2255 and the
execution of his sentence under § 2241, for state prisoners, § 2254 is the proper vehicle for both
types of collateral challenges.” Williams v. White, No. 5:14-CV-159-GNS-LKK, 2015 WL
1298627, at *5 n.3 (W.D. Ky. Mar. 23, 2015) (citing Allen, 185 F. App’x 487). Thus, the
magistrate judge correctly construed Fryar’s petition as one under § 2254 for the purposes of his
analysis.
Accordingly, Fryar’s petition must show that he is “in custody in violation of the
Constitution or laws or treaties of the United States.” See 28 U.S.C. §§ 2241(c)(3) and 2254(a).
Neither the Constitution nor Kentucky statute creates a liberty interest in future meritorious good
time. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008). As such, prison officials have
discretion under Kentucky Revised Statutes § 197.045(1) to deny prisoners future good time. Id.
On de novo review, the Court sees no abuse of that discretion here. Because there is no right to
accumulate meritorious good time credits, Fryar is not in custody in violation of the Constitution

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or laws or treaties of the United States. Therefore, the Court will adopt the magistrate judge’s
conclusion of law and will deny Fryar’s petition for a writ of habeas corpus.
B. The Magistrate Judge’s Interpretation and Use of Carpenter
The magistrate judge relied on Carpenter for further support of his conclusion that
Fryar’s petition should be denied. R. & R. 7–8, ECF No. 13. Fryar argues that this case is
distinguishable. Obj. R. & R. 2, ECF No. 14. In Carpenter, the petitioner was convicted for both
first-degree sexual abuse and for being a first-degree persistent felony offender. 2012 WL
2021718, at *1. KDOC refused to award Carpenter meritorious good time credit for any of his
sentence until he completed the SOTP. Id. Carpenter refused to do so because he maintained his
innocence of the sexual abuse charge. Id. Under Kentucky law, a sexual offender is not eligible
for sentencing credits until he or she completes the SOTP. Ky. Rev. Stat. Ann. § 197.045(4). The
court found that not only did the statute permit prison officials to deny Carpenter meritorious
good time credits, but also that there was no constitutional right to meritorious good time credit.
Carpenter, 2012 WL 2021718, at *2.
Fryar argues that Carpenter is distinguishable because Carpenter refused to complete the
SOTP, while Fryar was denied the opportunity to participate in the SOTP. Obj. R. & R. 2–3,
ECF No. 14. The Court agrees that Carpenter can be distinguished in this way. But regardless of
these differences, Carpenter is relevant. Carpenter accurately lays out that there is “no
constitutional right to meritorious good time credit.” 2012 WL 2021718, at *2. It also points out
that “Kentucky’s good time statute permits, but does not require, the KDOC to award such
credit.” Id. (citing Ky. Rev. Stat. Ann. 197.045(1)(b)(1)). And it correctly concludes that “the
award of meritorious good time credit is a privilege, not a right.” Id. (citing Anderson v. Parker,

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964 S.W.2d 809, 810 (Ky. Ct. App. 1997)). For these reasons, the Court will adopt the magistrate
judge’s report and recommendation and will deny Fryar’s petition for a writ of habeas corpus.
IV.

Certificate of Appealability

Before Fryar may appeal this Court’s decision, he must obtain a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). Certificates of appealability are
only available “if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000). The question is
whether “reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack, 529 U.S. at 484.
The magistrate judge found that his conclusion and the decision of the Kentucky Court of
Appeals was not contrary to law and was not “reasonably debatable by fair-minded jurists.” R. &
R. 8, ECF No. 13. On de novo review, this Court finds that reasonable jurists would not find this
assessment of Fryar’s petition to be debatable or wrong. There is no constitutional right to
meritorious good time credits. Therefore, the Court will deny a certificate of appealability to
Fryar on his petition for a writ of habeas corpus.
V.

Conclusion

The Court will adopt the magistrate judge’s report and recommendation in full. The Court
will deny Fryar’s petition for a writ of habeas corpus. The Court will deny Fryar a certificate of
appealability.
The Court will issue an order in accordance with this memorandum opinion.

July 12, 2017

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