Opinion
No. 111,412.
2015-03-12
Jeremiah D. PARKS, Appellant, v. KANSAS PRISONER REVIEW BOARD, Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.Jeremiah D. Parks, appellant pro se.John Welsey Smith, assistant attorney general, for appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Jeremiah D. Parks, appellant pro se. John Welsey Smith, assistant attorney general, for appellee.
Before MALONE, C J., LEBEN and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jeremiah D. Parks appeals from the decision of the Leavenworth County District Court denying his petition seeking habeas corpus relief on the grounds the Kansas Prisoner Review Board unconstitutionally denied him parole. We find no error and affirm.
Parks was convicted of first-degree murder and other crimes in 1998 in a jury trial in Sedgwick County. He received a controlling sentence of life in prison with parole eligibility after 15 years. Parks appeared before the Prisoner Review Board for the first time in July 2013. The review board denied parole and passed Parks for further review until August 2015, citing the violent nature of the offenses and “objections” to his release not otherwise described in detail.
Representing himself, Parks filed a habeas corpus petition under K.S.A.2013 Supp. 60–1501 contending the review board's decision rendered his continued detention unconstitutional. The district court summarily denied the petition. Parks has appealed and continues to represent himself.
A district court may summarily dismiss a petition for a writ of habeas corpus if the allegations establish no basis for relief or if the incontrovertible facts in the record show “no cause for granting a writ exists.” Johnson v. State, 289 Kan. 642, 648–49, 215 P.3d 575 (2009). An appellate court reviews the summary dismissal of a 60–1501 petition without any deference to that ruling. See 289 Kan. at 649.
A 60–1501 petition must describe a harm or injury to a person being held in government custody rooted in “shocking or intolerable conduct or continuing mistreatment of a constitutional stature.” 289 Kan. at 648. In short, the wrong alleged in the petition must entail the deprivation of a constitutional right. A claim under K.S .A. 60–1501 will lie if a governmental agency has unlawfully detained a person—the detention would be a constitutional violation.
The Kansas Supreme Court has held that a prisoner has no protected legal right to parole from a criminal sentence. Gilmore v. Kansas Parole Board, 243 Kan. 173, 178–80, 756 P.2d 410, cert. denied 488 U.S. 930 (1988); see also Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11–12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (Nebraska statutory scheme provided parole shall be granted in certain circumstances—unlike Kansas law—thereby creating a liberty interest requiring some measure of due process protection). Under Kansas law, parole is discretionary with the review board. See K.S.A.2013 Supp. 22–3710; Bohanon v. Heimgartner, No. 109,023, 2013 WL 3970213, at *3 (Kan.App.2013) (unpublished opinion) (citing controlling cases). Accordingly, a Kansas prisoner cannot assert a constitutional deprivation based on a purported lack of procedural due process in a parole hearing. The denial of parole does not itself result in unlawful detention; rather, the prisoner simply must continue to serve a lawfully imposed term of incarceration.
Parks' brief contains several intriguing legal notions. And some that aren't so intriguing. But he generally fails to explain how those arguments have some bearing on the review board's decision to deny him parole for the time being—a decision that does not enhance his sentence or otherwise make that punishment more onerous. We have carefully reviewed the arguments and the appellate record.
Parks does submit that in light of Sandin v. Conner, 515 U.S. 472, 483–84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), Greenholtz is no longer good law and by implication Gilmore, therefore, must be reconsidered. But that misreads Sandin. In that case, the Court held that regulations related to the day-to-day management of penal institutions or the terms and conditions of confinement of inmates do not create protected liberty interests for those prisoners simply because they are written using mandatory rather than discretionary language. See 515 U.S. 482–87. The Sandin decision did not deal with or affect the determination of a prisoner's liberty interest, if any, in parole or some other form of early or conditional release from incarceration. See Chappell v. Mandeville, 706 F.3d 1052, 1063–64 & n. 5 (9th Cir.2013); Ellis v. District of Columbia, 84 F.3d 1413, 1418 (D.C.Cir.1996) ( Sandin did not overrule Greenholtz with respect to liberty interests in parole); Valles v. Busby, No. CV I4–1360–GAF, 2014 WL 1614615, at *2 n. 4 (C.D.Cal.2014) (unpublished opinion). In turn, Parks' argument that he has some sort of liberty interest in parole requiring procedural due process protections fails.
Nonetheless, we recognize the review board could not arbitrarily deny parole to an inmate—by flipping a coin, for example—or based on a protected class characteristic—such as race or religion. See Galloway v. Kansas Parole Board, No. 110,637, 2014 WL 2229548, at *1 (Kan.App.2014) (unpublished opinion) (arbitrary and capricious), rev. denied 290 Kan. –––– (August 14, 2014). Parks makes no such claim, and such a claim would have to be supported with specific factual allegations in a 60–1501 petition.
Parks also argues he has a substantive due process right or interest in parole that was compromised by the review board's denial. Substantive due process protects a narrow range of fundamental liberty interests that are not otherwise enumerated in the United States Constitution. See Taylor v. Kansas Dept. of Health & Environment, 49 Kan.App.2d 233, 244, 305 P.3d 729 (2013), rev. denied 299 Kan. –––– (April 28, 2014). Such an interest must be “deeply rooted” in the national history, Washington v. Glucksberg, 521 U.S. 702, 720–21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), and has been described as part of “the very essence of a scheme of ordered liberty,” thus inseparably entwined with “ ‘a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ “ Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Among recognized substantive due process liberty interests are the right to bear and raise children, the right to marry, and the right to be free from government restraint and punishment absent a fair hearing. Substantive due process rights tend to be closely allied with those protections against government overreaching explicitly guaranteed in the Bill of Rights. See County of Sacramento v. Lewis, 523 U.S. 833, 843–44, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Glucksberg, 521 U.S. at 720; Ingraham v. Wright, 430 U.S. 651, 673–74, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). In addition, especially egregious or arbitrary actions of government officials may violate substantive due process protections of the Fourteenth Amendment if they further no legitimate governmental interest or their character “shocks the conscience.” County of Sacramento, 523 U.S. at 845–47; Katz v. Kansas Dept. of Revenue, 45 Kan.App.2d 877, 896, 256 P.3d 876 (2011).
Parks' substantive due process claim fails. Consistent with Gilmore, we can discern no fundamental interest in parole creating a substantive due process right. To hold otherwise would be inconsistent with Gilmore's determination that parole entails no liberty interest at all. And, as we have said, Parks alleges no arbitrary action here, let alone government actions that shock the conscience.
We find no other grounds in the appellate arguments or the record that would entitle Parks to legal relief.
Affirmed.