Opinion
CIV-23-668-PRW
08-25-2023
BERNARD CRAWFORD, Plaintiff, v. REGINA LAWSON et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Bernard Crawford, appearing pro se, filed a Complaint under 42 U.S.C. § 1983, alleging various violations of his constitutional rights. (ECF No. 1). United States District Judge Patrick R. Wyrick referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the Complaint has been conducted pursuant to 28 U.S.C. § 1915A(a). Based on that review, the Court should DISMISS the Complaint.
I. BACKGROUND
Mr. Crawford has filed a Complaint, challenging the actions of various members of the Oklahoma Pardon and Parole Board (PPB). See ECF No. 1. Although Plaintiff does not give any information regarding his underlying conviction, a review of his state court records indicates that Mr. Crawford is incarcerated, in part, pursuant to a 1982 conviction for first-degree rape, for which he is serving a 115 year sentence.
See Appearance Docket, State of Oklahoma v. Crawford, Case No. 80-3202 (Tulsa Co. Okla.); United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising discretion “to take judicial notice of publicly-filed records in [this] court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”).
On April 4, 1984, the Oklahoma legislature enacted 57 O.S. § 571, which designated certain crimes, including first-degree rape, as “violent” offenses. See 57 O.S. § 571(aa) (1984). In 1999, the Oklahoma legislature enacted 21 O.S. § 13.1 which required that “[p]ersons convicted of . . . first-degree rape . . . shall be required to serve not less than eighty-five percent (85%) of any sentence of imprisonment imposed by the judicial system prior to becoming eligible for consideration for parole.” 21 O.S. § 13.1. Additionally, at the time of Plaintiff's conviction, the “Forgotten Man Act” (FMA) governed parole opportunities and directed that once eligible for parole, an inmate would be reconsidered every twelve months. See Traylor v. Jenks, 223 Fed.Appx. 789, 790 (10th Cir. 2007) (detailing the Forgotten Man Act and parole opportunities for inmates convicted before 1998). But in 1997, the Oklahoma legislature repealed the Forgotten Man Act and replaced it with Okla. Stat. tit. 57, § 332.7, otherwise known as the Truth in Sentencing Act. (TIS Act). See Maynard v. Fallin, 564 Fed.Appx. 943, 945 (10th Cir. 2014).
As applied to offenders whose crimes were committed before July 1, 1998, the TIS Act sets initial docket dates for parole consideration at either a percentage of the midpoint of a sentencing matrix for the crime, or at one-third of the actual sentence, whichever is earlier. Okla. Stat. tit. 57, § 332.7(A). Once denied parole, inmates convicted of a violent crime are not eligible for reconsideration for three years. Okla. Stat. tit. 57, § 332.7(E)(1); see Traylor v. Jenk, 223 Fed.Appx. 789, 790 (10th Cir. 2007) (“Under the Truth in Sentencing Act, a person who committed a violent crime before July 1, 1998, and has been denied parole, is eligible for reconsideration at least once every three years.”). Additionally, when the PPB considers a parole application submitted by an inmate classified as a “violent offender,” it first considers only “a completed report conducted by the staff of the [PPB],” informally known as a “jacket review,” rather than holding an in-person hearing. Okla. Stat. tit. 57, § 332.7(D)(1); Taylor v. Harget, 203 F.3d 836 (10th Cir. 2000); see also, cf., Maynard v. Fallin, 564 Fed.Appx. 943, 945 (10th Cir. 2014) (detailing the change in parole consideration brought by the TIS Act).
In the Complaint, Plaintiff sues: (1) Regina Lawson, Parole Investigator for the PPB; (2) Steven Bickley, Executive Director of the PPB; (3) Hastings Siegfried, Chairman of the PPB; (4) Richard Smotherman, Member of the PPB; (5) Cathy Stocker, Member of the PPB; (6) Dr. Edward Konieczny, Member of the PPB; and (7) H. Calvin Prince, III, Member of the PPB. (ECF No. 1:5-7). Plaintiff sues each Defendant in their official and individual capacities and seeks injunctive, declaratory, and monetary relief. See ECF No. 1: 5-7, 10, 15). Although Plaintiff's Complaint is repetitive, the undersigned construes the Complaint as alleging three claims for relief. First, Plaintiff alleges that Ms. Lawson created a false report regarding his criminal history that was to be given to the PPB in violation of the Eighth Amendment. (ECF No. 1:9-11). Second, Mr. Crawford alleges that Ms. Lawson “recklessly applied” Oklahoma law to “convert[]” his crimes to being classified as “violent,” in violation of the Ex Post Facto Clause. (ECF No. 1:11-12). Third, Plaintiff alleges that all Defendants applied the TIS Act instead of the FMA when considering Plaintiff's parole, in violation of the Ex Post Facto Clause. (EF No. 1:13-15).
II. SCREENING REQUIREMENT
Federal law requires the Court to screen complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). After conducting an initial review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 520 (1972), "[t]he burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell At. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present "enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous "where it lacks an arguable basis either in law or in fact” or is "based on an indisputably meritless legal theory.” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. THE EIGHTH AMENDMENT CLAIM
Mr. Crawford alleges that Defendant Lawson violated the Eighth Amendment by compiling a report to give to the PPB which contained false information regarding Plaintiff's prior convictions and disciplinary incidents in prison. (ECF No. 1:10-11). Mr. Crawford apparently sought to correct the inaccuracy by filing an "Inmate Request to Parole Investigator,” to which Defendant Lawson replied that the information "was added to [Plaintiff's] report by mistake [and] [n]obody on the [PPB] ha[d] seen the report as of yet and [Plaintiff] [was] placed on the next available docket (September 2022), so that [his] report could be corrected.” (ECF No. 1:11).
Thereafter, Plaintiff does not allege that Ms. Lawson submitted the false report to the PPB, that the PPB was privy to the false information, or that he otherwise was injured by the allegedly false report. Instead, by Plaintiff's own admission, Ms. Lawson apologized for the mistake and corrected the situation prior to Plaintiff's parole hearing. Under such circumstances, the Court should conclude that Plaintiff has failed to state a claim for relief under the Eighth Amendment based on these allegations. See Pettigrew v. Zavaras, 574 Fed.Appx. 801, 812 (10th Cir. 2014) (finding (1) no constitutional violation when “[the plaintiff] has not established that the parole board itself was aware that it was acting on false information regarding his criminal background” and (2) an assertion of “reputational harm” was insufficient to invoke constitutional protection owing to an allegedly false report having been given to the PPB).
IV. THE EX POST FACTO CLAIMS
Mr. Crawford presents two ex post facto claims. First, Plaintiff alleges all Defendants applied the TIS Act to him instead of the FMA, “substantially increasing the risk that he would serve lengthier term of incarceration[.]” (ECF No. 1:13). Second, Petitioner alleges that Defendant Lawson retroactively applied various Oklahoma statutes, the Oklahoma Constitution, and even an Opinion from the Oklahoma Attorney General to re-classify his offenses as “violent,” which “prevented parole board from granting parole outright to Plaintiff's non-violent-defined crimes committed before April 4, 1984” and “increased the risk that he would serve a lengthier term of incarceration[.]”' (ECF No. 1:11, 12). The Court should disagree and reject Plaintiff's Ex Post Facto challenges.
A. Prohibition Against Ex Post Facto Laws
The United States Constitution prohibits states from passing ex post facto laws. U.S. CONST. art. I, § 10. The Ex Post Facto Clause “is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts.” Henderson v. Scott, 260 F.3d 1213, 1215 (10th Cir. 2001) (quoting Cal. Dept of Corr. v. Morales, 514 U.S. 499, 504 (1995)). “The Clause prohibits laws that make a previously innocent act criminal, increase the punishment for a crime after its commission, or deprive a defendant of a defense that was available at the time a crime was committed.” Tijerina v. Patterson, 507 Fed.Appx. 807, 809 (10th Cir. 2013) (citing Collins v. Youngblood, 497 U.S. 37, 42 (1990)). Two critical elements must be present for a law to fall within the ex post facto prohibition: “first, the law must be retroactive, that is, it must apply to events occurring before its enactment; and second, it must disadvantage the offender affected by it.” Miller v. Florida, 482 U.S. 423, 430 (1987).
B. No Ex Post Facto Violation
To prove that a change in parole standards violates the ex post facto clause, Petitioner must prove the change “create[s] more than a speculative risk,” Powell v. Ray, 301 F.3d 1200, 1203 (10th Cir. 2002), that he will serve “a longer period of incarceration than under the earlier rule,” Garner v. Jones, 529 U.S. 244, 255 (2000); see Henderson, 260 F.3d 1213, 1216. (10th Cir. 2001) ("When the new parole procedure “creates only 'the most speculative and attenuated possibility' of increasing the measure of punishment, it is 'insufficient under any threshold' to violate the Ex Post Facto Clause.” (quoting Morales, 514 U.S. at 509)).
In Henderson, the Tenth Circuit discussed a challenge to the TIS Act under the Ex Post Facto Clause, and clearly held that the TIS Act, does not constitute a facial violation of the Ex Post Facto Clause. As the court explained:
The Supreme Court has rejected the argument “that the Ex Post Facto Clause forbids any legislative change that has any conceivable risk of affecting a prisoner's punishment.” Morales, 514 U.S. at 508 [ ]. The Ex Post Facto Clause was never intended to result in judicial “micromanagement of an endless array of legislative adjustments to parole and sentencing procedures....” Id. Instead, the Court has consistently held that “the question of what legislative adjustments will be held to be of sufficient moment to transgress the constitutional prohibition must be a matter of degree.” Id. at 509 [ ] (internal quotations and citations omitted, emphasis in original). “Retroactive changes in laws governing parole of prisoners, in some instances, may be violative” of the prohibition against ex post facto laws, Garner v. Jones, 529 U.S. 244, 250 [ ] (2000), but the controlling inquiry is not whether the law is retroactive, but “whether it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Morales, 514 U.S. at 509 [ ] (footnote omitted); see also Lynce v. Mathis, 519 U.S. 433, 444 [ ] (1997). When the amendment creates only “the most speculative and attenuated possibility” of increasing the measure of punishment, it is “insufficient under any threshold” to violate the Ex Post Facto Clause. Morales, 514 U.S. at 509 [ ].Id. at 1215-16.
The Court noted that the TIS Act “does not change the length of the sentence in any way” and “does not affect the timing of the initial parole consideration, only of subsequent parole consideration dates.” Id. at 1216. The court also noted that the TIS Act “clearly reserves the Board's discretion to reconsider parole before the three-year period has expired.” Id. at 1217; see Okla. Stat. Ann. tit. 57, § 332.7(E) (providing that reconsideration cannot occur within three years of the previous denial unless “otherwise directed by the [PPB]. . . .”). Considering these factors as a whole, the court concluded that “under the Oklahoma parole system, inmates are not subject to a longer punishment because of the amended statute. The amendment only allows less frequent parole reconsideration dates in situations where the Parole Board determines that more frequent reconsideration is unnecessary.” Henderson, 260 F.3d at 1217. Based on this reasoning, the court held that "[w]hen viewed within the whole context of Oklahoma's parole regulations, [Okla. Stat. tit. 57, § 332.7] does not facially increase the likelihood of punishment.” Id. at 1216.
The Court went on to explain that "[a]lthough the statute is not violative of the ex post facto prohibition on its face, [a plaintiff] could still prevail upon a showing that its application in his case would result in a significant risk of a longer period of incarceration.” Id. at 1217; see also Koch v. Daniels, 296 Fed.Appx. 621, 625 (10th Cir. 2008) ("A retroactive law may not violate the Ex Post Facto Clause on its face, yet may still be applied in a way that increases a convict's punishment and therefore violates the Clause.”). In determining that the TIS Act as applied to the plaintiff did not violate the Ex Post Facto Clause, the Tenth Circuit in Henderson considered the inmate's multiple convictions for kidnapping and first-degree rape and the lengthy sentences imposed for both offenses. Henderson, 260 F.3d at 1217.
Similarly, in the present case, Plaintiff was convicted of first degree rape and sentenced to 115 years imprisonment. See supra. In light of the severity of Plaintiff's crime and the length of his incarceration, any basis to argue that he might receive parole if reconsidered on an annual basis relies on speculation, at best. See Clark v. Fallin, No. CIV-15-908-C, 2016 WL 1068854, at *2 (W.D. Okla. Feb. 23, 2016) ('“Based on the crime and the sentence's gravity, the undersigned finds Plaintiff's prospects for parole are remote and a change in his hearing dates appears immaterial.”). Accordingly, the undersigned finds Plaintiff's ex post facto challenge to the TIS Act should be dismissed for failure to state a claim upon which relief can be granted. See Wiggins v. Fudge, No. CIV-19-536-SLP, 2019 WL 8108357, at *6-7 (W.D. Okla. Sept. 16, 2019) (dismissing, on screening, plaintiff's ex post facto challenge to the TIS Act for failure to state a claim) adopted, 2019 WL 6838914, at *1 (W.D. Okla. Dec. 16, 2019).
Plaintiff also alleges that the Ex Post Facto Clause has been violated due to the reclassification of his offense(s) as "violent.” But again, Petitioner has failed to show more than speculation that he will serve more time than he would have before the designation. Petitioner has not yet been afforded parole, and he has failed to explain why consideration for parole under a "non-violent” classification of his crime(s) would yield a different result. See Metoyer v. Fudge, No. CIV-19-406-SLP, 2019 WL 4459335, at *3 (W.D. Okla. May 31, 2019) ('“Based on the crime and the sentence's gravity, the undersigned finds Plaintiff's prospects for parole are remote and a change in the procedure for considering his parole eligibility appears immaterial.”), adopted, 2019 WL 3412912 (W.D. Okla. July 29, 2019), affd, 786 Fed.Appx. 849 (10th Cir. 2019). The Court should, therefore, dismiss Plaintiff's allegations regarding a violation of the Ex Post Facto Clause due to a reclassification of his offense(s) as "violent.” See Abduihaseeb v. Rankins, 2022 WL 3572692, at *6 (W.D. Okla. June 29, 2022) ('“Petitioner has not proven that there is "more than a speculative” risk that he will serve more time now that first-degree rape is specifically designated as violent than he would have before that designation.”) adopted, 2022 WL 3567183 (W.D. Okla. Aug. 18, 2022).
V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based on the foregoing, the Court should dismiss the Complaint. Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by September 11, 2023. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VI. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral.