Matthies v. Houston

Filing 22

MEMORANDUM AND ORDER - IT IS ORDERED: Matthies will have 30 days from the date of this Memorandum and Order to file an amended petition for writ of habeas corpus that presents a cognizable claim for relief. Matthies' amended petition should se t forth the date of the parole decision he seeks to challenge in this matter, whether he attended and spoke at the parole hearing, and whether the parole board provided him with a statement of reasons for the denial of parole. If Matthies fails to fi le an amended petition within 30 days, this matter will be dismissed without prejudice and without further notice. The clerks office is directed to set a pro se case management deadline in this case using the following text: March 8, 2013: deadline f or Matthies to file an amended petition for writ of habeas corpus. Respondent need not respond to Matthies' amended petition unless directed to do so by the Court after the Court conducts an initial review of the amended petition. Matthies' "Motion to Rule on State Remedies" and "Motion for Telephonic Hearing" are denied without prejudice to reassertion (Filing Nos. 20 and 21 ). Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
GREGORY M. MATTHIES,

)
)
Petitioner,
)
)
v.
)
)
ROBERT HOUSTON,
)
)
Respondent.
)
______________________________)

4:12CV3069

MEMORANDUM AND ORDER

This matter is before the Court on petitioner Gregory
M. Matthies’s (“Petitioner” or “Matthies”) Petition for Writ of
Habeas Corpus (“Petition”) brought pursuant to 28 U.S.C. § 2254.
(Filing No. 1.)

Matthies is a state prisoner, and is proceeding

pro se in this matter.

For the reasons discussed below, the

Court will give Matthies an opportunity to file an amended
petition for writ of habeas corpus.
I.

BACKGROUND

Matthies was convicted in the Douglas County District
Court of second degree murder, attempted first degree murder,
attempted second degree murder, and three counts of use of a
firearm in the commission of a felony.

State v. Matthies, No. A-

96-087, 1997 WL 50215, at *1 (Neb. Ct. App. Jan. 21, 1997).
Matthies filed his Petition in this Court on April 10, 2012
(Filing No. 1).

In his two-page Petition, he alleges that he has

been eligible for parole since March of 2010, but the Nebraska
Board of Parole has “arbitrarily” denied him parole.

(Id. at

CM/ECF p. 2.)

Liberally construed, Matthies alleges that the

parole board’s arbitrary denial of parole violates his Fourteenth
Amendment right to due process.
II.
A.

(Id.)
ANALYSIS

Subject-Matter Jurisdiction
Respondent has argued that this Court lacks subject-

matter jurisdiction to entertain Matthies’s denial-of-parole
claim.

The Court disagrees.

As set forth in 28 U.S.C.

§ 2254(a), “a district court shall entertain an application for a
writ of habeas corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of
the United States.”

28 U.S.C. § 2254(a).

The Supreme Court has

long held that “when a state prisoner is challenging the very
fact or duration of his physical imprisonment, and the relief he
seeks is 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.”

Preiser v. Rodriguez, 411

U.S. 475, 500 (1973); see also Skinner v. Switzer, 131 S. Ct.
1289, 1293 (2011) (“Habeas is the exclusive remedy, we
reaffirmed, for the prisoner who seeks ‘immediate or speedier
release’ from confinement.”); Kruger v. Erickson, 77 F.3d 1071,
1073 (8th Cir. 1996) (noting that the prisoner’s “label” of his
case is not controlling and that where a “petitioner seeks a writ
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of habeas corpus” attacking the length of his state custody,
“[i]t is the substance of the relief sought which counts”).

This

extends to habeas corpus actions seeking release on parole.
Smallwood v. Missouri Bd. of Prob. and Parole, 587 F.2d 369, 371
(8th Cir. 1978) (finding that habeas corpus is the “proper
federal remedy” for challenge to action denying the petitioner
parole because the petitioner, “in effect, seeks release from
confinement”).
Here, Petitioner’s claim asserts a violation of his
constitutional right to due process during the parole process
(Filing No. 1).

The only relief sought by Petitioner is

immediate release from prison on parole.

(Id. at CM/ECF p. 1.)

Thus, if the Court granted Petitioner the relief he seeks, he
will have received a “speedier release.”

As set forth above, a

habeas corpus action is the appropriate vehicle in which to raise
Petitioner’s due process claim.
B.

Due Process Claim
Liberally construed, Matthies has asserted a violation

of his constitutional right to due process during the parole
process.

The law is clear that there is no federal

constitutional right to be paroled.

Greenholtz v. Inmates of

Nebraska Penal and Corr. Complex, 442 U.S. 1, 7 (1979) (holding
there is no constitutional right of a convicted person to be
conditionally released before the expiration of a valid sentence,

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and the states are under no duty to offer parole to their
prisoners).

However, state statutes and constitutions “may

create liberty interests in parole release that are entitled to
protection under the Due Process Clause.”
Allen, 482 U.S. 369, 371 (1987).

Bd. of Pardons v.

Here, Respondent states that

Nebraska parole eligibility statutes create such a liberty
interest in parole (Filing No. 14 at CM/ECF p. 4).

The Court

agrees that a reasonable application of Nebraska case law
suggests that Nebraska law creates a liberty interest in parole
worthy of minimal protection under the Due Process Clause.

See

Greenholtz, 442 U.S. at 12.
When a state creates such liberty interests, “the Due
Process Clause requires fair procedures for its vindication—and
federal courts will review the application of those
constitutionally required procedures.”
S. Ct. 859, 862 (2011).
required are minimal.

Swarthout v. Cooke, 131

In the parole context, the procedures
Id.

In Greenholtz, the Supreme Court

found that a prisoner subject to Nebraska’s parole statute
received adequate process when he was allowed an opportunity to
be heard and was provided a statement of reasons why parole was
denied.

442 U.S. at 16.

The Court held that the United States

Constitution “does not require more.”

Id.

Thus, in the parole

context, the only proper inquiry is what process the inmate
received.

Swarthout, 131 S. Ct. at 863.
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Petitioner has not alleged that he did not receive an
opportunity to be heard or a statement of the reasons why parole
was denied.

It is not clear from his allegations whether he was

allowed to attend his parole hearing, whether he was allowed to
speak, and whether he was given a statement of reasons for the
denial of his parole.

These considerations are “the beginning

and the end of the federal habeas courts’ inquiry into whether
[Matthies] received due process.

Swarthout, 131 S. Ct. at 859.

Thus, as pleaded, Matthies’s Petition does not present a
cognizable claim for relief.
1

However, given Matthies’s pro se status, the Court is

reluctant to dismiss Matthies’ Petition without first giving him
an opportunity to amend.

Thus, on the Court’s own motion,

Matthies will be given 30 days to file an amended petition that
presents a cognizable claim for relief.
C.

Pending Motions
Matthies has filed a “Motion to Rule on State Remedies”

and a “Motion for a Telephonic Hearing.”
21.)

(Filing Nos. 20 and

In these motions, Matthies moves the Court to hold a

telephonic evidentiary hearing in this matter.

Matthies’ request

for an evidentiary hearing is premature given that his Petition

1

On July 5, 2012, the Court “preliminarily” decided that
Matthies’s due process claim was “potentially cognizable in
federal court.” (Filing No. 8 at CM/ECF p. 1.) Upon further
review of Matthies’ Petition, the Court finds that Matthies’
claim is not cognizable as pled.
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does not state a cognizable claim for relief.

Accordingly, these

motions will be denied without prejudice to reassertion after
Matthies files an amended petition that states a cognizable claim
for relief.
IT IS ORDERED:
1.

Matthies will have 30 days from the date of this

Memorandum and Order to file an amended petition for writ of
habeas corpus that presents a cognizable claim for relief.
Matthies’ amended petition should set forth the date of the
parole decision he seeks to challenge in this matter, whether he
attended and spoke at the parole hearing, and whether the parole
board provided him with a statement of reasons for the denial of
parole.

If Matthies fails to file an amended petition within 30

days, this matter will be dismissed without prejudice and without
further notice.
2.

The clerk’s office is directed to set a pro se

case management deadline in this case using the following text:
March 8, 2013: deadline for Matthies to file an amended petition
for writ of habeas corpus.
3.

Respondent need not respond to Matthies’ amended

petition unless directed to do so by the Court after the Court
conducts an initial review of the amended petition.

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4.

Matthies’ “Motion to Rule on State Remedies” and

“Motion for Telephonic Hearing” are denied without prejudice to
reassertion (Filing Nos. 20 and 21).
DATED this 11th day of February, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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