Cooper v. Mirandy

Filing 45

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, DENYING PETITIONER'S MOTION FOR INFORMATION TO BE EXPUNGED, AND DENYING PETITIONER� 39;S MOTION TO APPOINT COUNSEL: Granting 29 Motion for Summary Judgment; Denying 38 Motion For Information to Be Expunged; Denying 39 Motion to Appoint Counsel ; Adopting 42 Report and Recommendations for re 1 Petition for Writ of Ha beas Corpus filed by Randy S. Cooper, 38 MOTION For Information to be Expunged filed by Randy S. Cooper, 29 MOTION for Summary Judgment filed by Patrick Mirandy. 44 Objections to R/R are overruled. Case to be Dismissed with Prejudi ce and stricken from active docket. Clerk directed to enter Judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 3/12/18. (copy to Petitioner by cert. mail)(soa) (Additional attachment(s) added on 3/12/2018: # 1 Certified Mail Return Receipt) (soa).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RANDY S. COOPER,
Petitioner,
v.

Civil Action No. 5:16CV85
(STAMP)

PATRICK MIRANDY,
Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT,
DENYING PETITIONER’S MOTION FOR INFORMATION TO BE EXPUNGED,
AND DENYING PETITION’S MOTION TO APPOINT COUNSEL
The petitioner, Randy S. Cooper, filed this pro se1 petition
under 28 U.S.C. § 2254 challenging decisions by the West Virginia
Parole Board (the “Parole Board”). The case was referred to United
States Magistrate Judge Robert W. Trumble.

The respondent filed a

motion for summary judgment, and the petitioner filed a motion for
information to be expunged and a motion to appoint counsel.
Magistrate Judge Trumble issued a report recommending that the
respondent’s motion be granted and that the petitioner’s motions be
denied.

The petitioner filed timely objections to the report and

recommendation.

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

I.

Background

On November 4, 1996, the petitioner entered a plea of guilty
to first degree murder, for the murder of his sister, and was
sentenced to life with mercy.

In his petition, the petitioner

first argues that the retroactive application of West Virginia Code
§ 62-12-13(a)(5) (recodified at § 62-12-13(e)) violates the ex post
facto

provisions

Constitution

and

of

Article

Article

1,

III,

§
§

10
3

of
of

the
the

United
West

States

Virginia

Constitution. Second, the petitioner argues that he is entitled to
be released on parole pursuant to West Virginia Code §§ 62-12-1
through 62-12-29 and the due process clause of the United States
Constitution because he successfully completed the rehabilitation
programs ordered by the Parole Board at the conclusion of his 2011
Parole Board hearing. Third, the petitioner argues that the Parole
Board denied him parole in August 2014 based on his positive Human
Immunodeficiency Virus (“HIV”) status, which was a discriminatory
action in violation of the Americans with Disabilities Act of 1990
(the “ADA”), 42 U.S.C. § 12182. Fourth, the petitioner argues that
West Virginia Code § 62-12-13(a)(5) is unconstitutional because it
subjects him to an increase in the punishment he would otherwise be
required to serve on his life with mercy term of confinement.
The respondent filed a motion for summary judgment.

In the

motion, the respondent first argues that the petitioner’s first and
fourth claims for relief are time barred under the Anti-Terrorism

2

and Effective Death Penalty Act of 1996 (the “AEDPA”), which
establishes a one-year limitation period for filing any federal
habeas corpus petition.

The respondent also argues that, even if

not untimely, the petitioner’s contention that West Virginia Code
§ 62-12-13(e) violates ex post facto principles fails on the
merits. Additionally, the respondent argues that, because there is
no constitutional right to be released on parole, the petitioner’s
second claim that he is entitled to be released on parole is
without merit. Lastly, the respondent argues that the petitioner’s
third claim has no merit because his medical condition was not
considered as a factor in his denial of parole.
The

petitioner

respondent’s

motion

filed
for

a

response

summary

in

judgment.

opposition
In

to

the

response,

the

petitioner raises for the first time a number of issues that fall
outside of the four corners of his petition.

The petitioner also

argues that the retroactive application of West Virginia Code
§ 62-12-13(e) violates both federal and state ex post facto laws
because it creates a significant risk of increased punishment. The
petitioner then contends that the decision of the West Virginia
Supreme Court of Appeals in State ex rel. Carper v. West Virginia
Parole Board, 509 S.E.2d 864 (W. Va. 1998), violates the separation
of powers doctrine because it effectively rewrote § 62-12-13(e) by
adding vague procedural safeguards in order to permit the statute
to pass constitutional muster.

Lastly, the petitioner argues that

3

he was wrongly denied parole based, at least in part, on the basis
of his HIV condition, in violation of the ADA.
The respondent filed a reply to the petitioner’s response in
opposition.

In reply, the respondent argues again that the

petitioner’s claims grounded on his 2011 probation proceedings are
time-barred by the AEDPA’s one-year statute of limitations.

The

respondent also contends that there is record evidence that the
petitioner’s parole denials were not based in any way on his HIV
status.
II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made.

Because the petitioner filed

objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which

objections

were

made.

As

to

those

findings

to

which

objections were not filed, those findings and recommendations will
be upheld unless they are “clearly erroneous or contrary to law.”
28 U.S.C. § 636(b)(1)(A).
III.

Discussion

A. Constitutionality of West Virginia Code § 62-12-13(e)
The magistrate judge first addresses the claims regarding the
constitutionality

of

West

Virginia

Code

§

62-12-13(e).

The

magistrate judge cites Roller v. Gunn, 107 F.3d 227 (4th Cir.

4

1997), a case in which the United States Court of Appeals for the
Fourth Circuit held that the ex post facto clause is not violated
simply because a retroactive reduction in parole review frequency
would “necessarily eliminate an opportunity for early release.”
Roller, 107 F.3d at 235.
retroactive

reduction

Rather, a court must inquire whether a

in

parole

review

frequency

creates

“a

sufficient risk of increasing the measure of punishment attached to
the covered crimes.”

Id. (quoting Cal. Dep’t of Corr. v. Morales,

514 U.S. 499, 509 (1995)).
The

magistrate

judge

recognizes

that

the

petitioner

was

convicted of first degree murder in 1996, at which time all state
prisoners

were

entitled

to

becoming eligible for parole.

annual

parole

consideration

after

The magistrate judge notes that, in

1997, the West Virginia Legislature amended the parole statute to
permit the Parole Board to set off a prisoner’s parole interview
for up to three years for prisoners serving life with mercy
sentences.

The Parole Board began to apply the amended statute to

all prisoners regardless of the date of their sentencing.

In a

challenge to the amended statute, the West Virginia Supreme Court
of Appeals held that it is constitutional and does not violate the
ex post facto clause of the West Virginia Constitution.

See

Carper, 509 S.E.2d at 866 (holding that the amended statute “may be
applied retroactively to prisoners whose relevant offenses occurred
prior to the effective date of the statutory amendment”).

5

On de novo review, this Court agrees with the magistrate judge
that, when viewed within the context of West Virginia’s parole
regulations,

the

statute

does

not

facially

increase

the

petitioner’s likelihood of punishment. The petitioner’s likelihood
of punishment does not increase because (1) the statute does not
change the length of the sentence in any way; (2) the statute does
not affect the timing of the initial parole consideration, only of
subsequent parole consideration dates; and (3) the 1997 amendment
does not deny the Parole Board the ability to review or grant
parole at any time after parole is initially denied for any inmate
serving a life sentence.

This Court notes that, under Carper, the

Parole Board must demonstrate that its decision to deny an inmate
parole review for longer than one year will not work to the
“detriment or disadvantage” of the inmate.
871.

Carper, 509 S.E.2d at

Thus, the magistrate judge is correct that the amended

statute simply permits less frequent parole reconsideration dates
in situations in which the Parole Board determines that more
frequent consideration is unnecessary.
The petitioner also claims that the Parole Board did not
comply with the requirements of Carper.

In Carper, the West

Virginia Supreme Court of Appeals held that the amended statute
“must be applied on a case-by-case basis to prisoners whose
offenses occurred at a time when the law prescribed annual parole
review.”

Id. at 871.

The magistrate judge concluded that this

6

claim rests solely upon alleged violations of state law, and that
claims of state law violations are not cognizable by federal
courts.

See Weeks v. Angelone, 176 F.3d 249, 262 (1999) (“[W]hen

a petitioner’s claim rests solely upon an interpretation of state
law case law and statutes, it is not cognizable on federal habeas
review.”). On de novo review, this Court finds that the magistrate
judge is correct that this claim is not cognizable in this Court.
B. Due Process Claim
Next, the magistrate judge addresses the claim regarding
whether the due process clause entitles the petitioner to be
released on parole because he successfully completed all of the
rehabilitation

programs

ordered

by

the

Parole

Board.

The

magistrate judge notes that “[t]here is no constitutional or
inherent right of a convicted person to be conditionally released
before the expiration of a valid sentence.”

Smith v. Liller, 314

F. Supp. 2d 623, 629 (N.D. W. Va. 2004) (quoting Greenholtz v.
Inmates of the Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979)).
Rather, a state’s parole system must simply provide appropriate
avenues for review pursuant to federal due process.

See id. (“If

a state has a parole system, the parole procedures must meet the
due process requirements of the constitution.”).
On de novo review, this Court agrees with the magistrate judge
that the petitioner’s only right regarding parole is that the
Parole Board consider him for parole and decide his case in a

7

manner that is not arbitrary or capricious.

The magistrate judge

correctly notes that the petitioner makes no allegation that the
Parole Board acted in an arbitrary or capricious manner.

In his

objections to the report and recommendation, the petitioner argues
that his positive factors make him a good candidate for parole.
Specifically, the petitioner points to the fact that he has
completed numerous educational and vocational classes, maintained
employment, and been write-up free for eight years.
Despite the petitioner’s objections, this Court agrees with
the magistrate judge that, according to the record, the Parole
Board interviewed the petitioner, reviewed his file, and considered
the positive and negative factors, including his completion of the
rehabilitation

programs.

Thus,

this

Court

finds

that

the

petitioner cannot show that the denial of parole was based on an
unreasonable determination of the facts in light of the evidence
presented.
C. Consideration of Positive HIV Status
Lastly, the magistrate judge addresses the petitioner’s claim
that the Parole Board denied him parole based on his positive HIV
status and that the denial violated the ADA.

“[T]he ADA prohibits

a public entity from discriminating against a qualified individual
with a disability on the basis of disability.”
295 F.3d 890, 895 (9th Cir. 2002).
categorically

bar

a

state

However, the ADA “does not

parole

8

Thompson v. Davis,

board

from

making

an

individualized assessment of the future dangerousness of an inmate
by taking into account the inmate’s disability.”

Id. at 898 n.4.

On de novo review, this Court agrees with the magistrate judge
that there is no evidence that the Parole Board considered the
petitioner’s HIV status when it denied him parole in August 2014.
In his objections to the report and recommendation, the petitioner
contends that a report from the Huttonsville Correctional Center
describing his HIV condition was used by the Parole Board in making
their

decision,

and

that

the

respondent

statements about people with HIV.

made

discriminatory

However, according to the

transcript of the parole interview, the petitioner’s HIV status was
not discussed or even mentioned at the interview. Thus, this Court
finds that this claim has no merit.
IV.

Conclusion

For the reasons set forth above, the magistrate judge’s report
and

recommendation

(ECF

No.

42)

is

AFFIRMED

AND

ADOPTED.

Accordingly, the respondent’s motion for summary judgment (ECF No.
29) is GRANTED, the petitioner’s motion for information to be
expunged (ECF No. 38) is DENIED, the petitioner’s motion to appoint
counsel (ECF No. 39) is DENIED, and the petitioner’s objections to
the report and recommendation (ECF No. 44) are OVERRULED.

It is

ORDERED that this civil action be DISMISSED WITH PREJUDICE and
STRICKEN from the active docket of this Court.

9

Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

March 12, 2018

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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