Opinion
CIV-20-989-SLP
12-15-2020
THOMAS ANDREW BIAS, Plaintiff, v. KEVIN STITT, et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner proceeding pro se, filed this action under 42 U.S.C. § 1983. Doc. 1. United States District Judge Scott L. Palk referred this matter to the undersigned for initial proceedings under 28 U.S.C. § 636(b)(1)(B). Doc. 3. Plaintiff raises claims under the Eighth, Fifth, and Fourteenth Amendments, challenging the adequacy of Oklahoma's parole procedures under the Miller /Montgomery line of cases. His claims fail because he received neither a life sentence nor the functional equivalent of a life sentence. He also lacks a liberty interest in Oklahoma's discretionary parole system. The Court should dismiss Plaintiffs complaint for failure to state a claim.
This report cites court documents by their electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
See Miller v. Alabama, 567 U.S. 460, 479 (2012) (holding Eighth Amendment prohibits mandatory sentence of life without parole for juveniles who commit homicide); Montgomery v. Louisiana, 136 S.Ct. 718, 734-35 (2016) (explaining that while Miller “did not foreclose a sentencer's ability to impose life without parole on a juvenile” who commits murder, it nevertheless prohibited that sentence for “all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility” and held that Miller announced a substantive rule of constitutional law that States must apply on collateral review).
I. Plaintiff's claims.
In claim one, Plaintiff maintains he has received only an “unconstitutional/version of a ‘parole consideration' hearing.” Doc. 1, at 4. He states the Oklahoma Pardon and Parole Board applied an adult matrix policy to him, even though he was a juvenile at the time of the commission of the offense. Id. In claim two, he argues “Governor Stitt has allowed the [Oklahoma] Pardon and Parole Board to operate in an unconstitutional-bias and prejudice-and discriminatory manner toward Plaintiff.” Id. at 5. He asks that “this Court direct Governor Stitt to procure policies and procedures that do ensure the constitutional safeguards and protections of a Supreme Court Miller/Montgomery mandate” and that the Pardon and Parole Board cease their current discriminatory practices. Id. at 6.
Section 1983 “is the proper vehicle for [Plaintiff's adult-matrix] claim, ” and for his challenge to the present parole board policies and procedures. See Rodgers v. Whitten, No. CIV-20-839-PRW, 2020 WL 5407457, at *3 (W.D. Okla. Sept. 9, 2020) (finding that because plaintiff's “adult-matrix claim would not undermine the validity of his conviction or require the shortening of his sentence . . . § 1983 is the proper vehicle for that claim”).
II. Plaintiff's conviction history.
Plaintiff was convicted of first-degree murder and sentenced to death. See Bias v. State, 561 P.2d 523, 527 (Okla. Crim. App. 1977). At the time of the murder, Plaintiff was 17-years old and certified to be tried as an adult. Id. at 527-28. In 1977, the Oklahoma Court of Criminal Appeals affirmed his conviction but modified his sentence to life imprisonment. Id. at 538.
III. The Court's duty to screen prisoner complaints.
Federal law mandates the screening of complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). On review, this Court must dismiss a complaint or any portion of it presenting claims that are frivolous or 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. Id. § 1915A(b).
IV. Plaintiff's claims fail to state a claim.
A. Plaintiff's Eighth Amendment claim fails to state a claim because neither Miller nor Montgomery applies to his sentence.
Plaintiff argues the Oklahoma Pardon and Parole Board's application of “adult matrix” rules in determining eligibility for parole consideration amount to an Eighth Amendment violation. Doc. 1, at 4. He maintains that because he was a juvenile when he committed the crime, this procedure defies Miller and Montgomery, in that these rules require Plaintiff “to serve a disproportionate sentence in violation of the Eighth Amendment.” Id. At bottom, Plaintiff argues Miller and Montgomery apply to him. He is incorrect.
In Miller, the Supreme Court considered the constitutionality of a sentencing scheme that required life-without-parole sentences for juvenile offenders convicted of homicide. 567 U.S. at 479. The Court determined the sentencing scheme violated the Eighth Amendment by making an offender's youth “irrelevant to imposition of that harshest prison sentence.” Id. The Supreme Court held that a law mandating life imprisonment without the possibility of parole for a homicide offense is unconstitutional as applied to juveniles. Id. at 479-80.
In so holding, the Supreme Court observed:
State law mandated that each juvenile [convicted of homicide] die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate. Such a scheme prevents those meting out punishment from considering a juvenile's “lessened culpability” and greater “capacity for change, ” Graham v. Florida, 560 U.S. 48, 68, 74 [] (2010), and runs afoul of our cases' requirement of individualized sentencing for defendants facing the most serious penalties.Id. at 465.
The Court explained that these circumstances “implicate two strands of precedent reflecting our concern with proportionate punishment”: (1) cases in which the Court has “adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty, ” including cases “specially focused on juvenile offenders, because of their lesser culpability”; and (2) cases in which the Court has “prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death.” Id. at 470.
So, the Supreme Court determined that a sentencing scheme mandating life imprisonment without parole for a homicide offense is unconstitutional as applied to juvenile offenders because such a scheme precludes the sentencing court from considering proportionality-related factors such as the characteristics of youth, the offender's own circumstances, and circumstances of the crime itself. Id. at 477-80. The Court noted that its ruling did “not foreclose a sentencer's ability to [sentence juvenile offenders to life without parole] in homicide cases.” Id. at 480.
Additionally, Miller may be read to extend beyond mandatory sentencing schemes. In Miller, the Supreme Court held that a sentencing court must “follow a certain process-considering an offender's youth and attendant characteristics-before imposing” a life-without-parole sentence upon a juvenile offender. Id. at 483. This and other discussion in Miller could be read as requiring all jurisdictions, including those with discretionary sentencing schemes, to consider a juvenile offender's youth and attendant characteristics before imposing a sentence of life imprisonment without parole. Cf. Budder v. Addison, 851 F.3d 1047, 1059 (10th Cir. 2017) (holding the Supreme Court's ruling that the Eighth Amendment prohibits life without parole sentences against non-homicide juvenile offenders applied to the petitioner's sentence, though not labeled “life without parole, ” because he had to serve 131.75 years in prison before he would be eligible for parole).
The undersigned concludes that Plaintiff's sentence does not implicate the Supreme Court's decision in Miller. Plaintiff was neither sentenced to life without parole nor was he sentenced to the functional equivalent of life without parole. Plaintiff was convicted in 1974, before state law required the service of a minimum percentage of his sentence. Just like today, Plaintiff would have been considered for parole after serving one-third of his sentence. Okla. Stat. tit. 57, § 332.7(A). The Pardon and Parole Board uses the benchmark of forty-five years for any inmate serving a term of forty-five years or more, including a life sentence. Fields v. State, 501 P.2d 1390, 1394 (Okla. Crim. App. 1972). So, Plaintiff would have been entitled to an initial parole review after serving fifteen years.
In 2000, Oklahoma adopted a statute requiring prisoners convicted of certain crimes to serve at least 85% of a sentence of imprisonment. Okla. Stat. tit. 21, § 13.1. Because Plaintiff was convicted before that date, it does not apply to him. Landes v. McCollum, No. CIV-14-190-R, 2014 WL 6455483, at *3 n.6 (W.D. Okla. Nov. 13, 2014).
Plaintiff's life sentence did not implicate Miller because he did not receive a sentence of life without parole nor the equivalent of such a sentence. Plaintiff stated he received a parole hearing in July 2020, and suggests he has received one every three years. Doc. 1, at 4. He just disagrees with the procedure in place. He cannot establish an Eighth Amendment violation with Miller underpinning his claim. See Lewis v. Okla. Pardon & Parole Bd., No. CIV-18-1205-G, 2019 WL 1500671, at *1 (W.D. Okla. Apr. 5, 2019) (concluding that Miller did not apply because “Plaintiff was not sentenced to life-without-parole and has in fact been considered for parole on at least six occasions” and dismissing § 1983 complaint).
B. Plaintiff has no liberty interest in parole.
Plaintiff's second claim, alleging due process and equal protection violations under the Fifth and Fourteenth Amendments, also fails. He again argues that because he was “a juvenile[] at the time of the commission of [the] crime, ” the Pardon and Parole Board should consider evidence that might show rehabilitation under Montgomery. Doc. 1, at 5. He maintains the current policy allows no procedure to demonstrate the “crime did not reflect irreparable corruption” relying on Montgomery (and other Supreme Court cases, including Miller). Id. at 6.
Plaintiff roots his assertions in a constitutional liberty interest in parole. But Plaintiff has never had a liberty interest in parole consideration or procedure, given its discretionary nature. See Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 11 (1979) (“That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained . . . a hope which is not protected by due process.”); Griffith v. Bryant, 625 Fed.Appx. 914, 917-18 (10th Cir. 2015) (“[B]ecause Oklahoma's parole scheme is discretionary, [the plaintiff] has no constitutionally protected due process liberty interest in parole.” (citing Shabazz v. Keating, 977 P.2d 1089, 1093 (Okla. 1999) and Shirley v. Chestnut, 603 F.2d 805, 807 (10th Cir. 1979))). Therefore, none of Plaintiff's alleged deficiencies in the Pardon and Parole Board's application of its procedure violate his due process rights. See, cf. Pettigrew v. Zavaras, 574 Fed.Appx. 801, 809-15 (10th Cir. 2014) (affirming dismissal of the plaintiff's claim that the Pardon and Parole Board violated his procedural and substantive due process rights when they relied on false information in his prison file to deny parole because plaintiff lacked a due process right to parole and thus lacked a constitutional right to “fair parole procedures”). And Plaintiff's claim again relies on Miller and Montgomery applying to his sentence, which they do not. As a result, Plaintiff's Fifth and Fourteenth claim should be dismissed for failure to state a claim upon which relief can be granted.
Similarly, liberally construing his complaint, Plaintiff raises an equal protection claim but “offers neither factual allegations nor legal authority in support of such claim.” Kimble v. Jenks, No. CIV-11-207-D, 2011 WL 7167094, at *5 (W.D. Okla. Sept. 29, 2011). “The Fourteenth Amendment guarantee of equal protection is essentially a direction that all persons similarly situated should be treated alike, ” yet Plaintiff “fails to identify any similarly-situated individual that has been given any different or more beneficial treatment.” Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009) (holding the claimant “failed to raise any plausible equal protection claims” where “[h]is bare equal protection claims [were] simply too conclusory to permit a proper legal analysis”). And an equal protection claim has no basis in relation to Plaintiff's other allegations: prisoners are neither “a protected class” nor “have a fundamental right to parole or to release prior to the expiration of a valid sentence.” Copeland v. Matthews, 768 F.Supp. 779, 780-81 (D. Kan. 1991) (concluding the petitioner was entitled to no relief because his claim did not implicate “a suspect class nor a fundamental right, ” and “[t]he analysis of an equal protection claim must begin with a determination of whether the challenged classification is one which involves a suspect class or the exercise of a fundamental right”). So, the Court should also dismiss Plaintiff's equal protection claim for failure to state a claim.
V. Recommendation and notice of right to object.
For the reasons stated, the undersigned recommends the Court dismiss Plaintiff's complaint for failure to state a claim.
The undersigned advises Plaintiff of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before January 5, 2021, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all the issues referred to the undersigned Magistrate Judge in the captioned matter.
IT IS SO ORDERED.