Opinion
CIV-21-451-SLP
08-30-2021
ELSTON CRAIG THOMAS, Petitioner, v. LONNIE LAWSON, Warden, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner appearing pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, challenging the execution of his prison sentence. (Doc. 1, “Petition”). Respondent has filed a Motion to Dismiss (Doc. 7), to which Petitioner has filed a Response (Doc. 8), along with an objection to the admission of the Motion to Dismiss and a Motion for Default Judgment (Docs. 9, 10). United States District Judge Scott L. Palk referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). For the reasons set forth below, the undersigned recommends that the court grant Respondent's Motion and dismiss Petitioner's action. It is also recommended that the court deny Petitioner's pending motions.
The court construes Plaintiff's prosefilings liberally. SeeHallv.Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
I. Background
On August 5, 2019, Petitioner was sentenced to a 20-year term of imprisonment, with all but the first eight years suspended, in Tulsa County District Court, Case Number CF-2019-2168, after pleading guilty to four counts of robbery with a dangerous weapon and one count of attempted robbery with a dangerous weapon. (Doc. 7, at Ex. 2). Under Oklahoma Statutes Title 21, Section 13.1, Petitioner is required to serve 85% of his sentence “prior to becoming eligible for consideration for parole” and he “shall not be eligible for earned credits or any other type of credits which have the effect of reducing the length of the sentence to less than eighty-five percent (85%) of the sentence imposed.” Okla. Stat. tit. 21, § 13.1(8). Petitioner did not appeal his sentence. (Doc. 1, at 2-6). Petitioner will have served 85% of his sentence on February 9, 2026. (Doc. 7, at 2; Ex. 1).
Petitioner filed the instant Petition on April 29, 2021. (Doc. 1, at 9). The Petition alleges that Petitioner is being deprived of his liberty and denied due process through the “withholding” of earned credits towards his sentence. (Id. at 7). Petitioner argues that he is not challenging the 85% mandate itself or his conviction and sentence, but rather the deprivation without due process of his liberty interest in sentence credits he has earned. (Doc. 8, at 6-7, 13-14). Petitioner requests that the Oklahoma Department of Corrections (“ODOC”) “be ordered to apply all lawfully earned credits . . . towards Petitioner's sentence and order Petitioner be discharged and immediately released from custody.” (Doc. 1, at 8). Respondent has filed a Motion to Dismiss, arguing that dismissal of the Petition is appropriate because Petitioner has not exhausted his administrative and state court remedies, because Petitioner's claim is barred by the statute of limitations, and because Petitioner has failed to state a violation of federal law. (Doc. 7).
II. Analysis
The Due Process Clause of the Fourteenth Amendment guarantees certain procedural safeguards before a State may deprive an individual of his or her “life, liberty, or property.” U.S. Const. amend. XIV; Wolff v. McDonnell, 418 U.S. 539, 558 (1974). “We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State, the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient[.]” Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted). Therefore, with respect to Petitioner's claims of due process deprivations, Petitioner must first establish that he had a constitutionally protected interest.
Protected liberty interests may be derived from the Due Process Clause itself or from state law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Hewitt v. Helms, 459 U.S. 460, 466 (1983), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 484 (1995). “[T]he Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison.” Wolff, 418 U.S. at 557. However, Oklahoma has created a liberty interest in earned sentence credits. Okla. Stat. tit. 57, § 138(A); Waldon v. Evans, 861 P.2d 311, 313 (Okla. Crim. App. 1993). Thus, Oklahoma inmates are generally entitled to minimum due process protections prior to the revocation of their earned credits. However, Oklahoma law prohibits the application of earned credits to reduce sentences imposed for certain crimes, including robbery with a dangerous weapon, until the convicted individual has served 85% of his sentence. Okla. Stat. tit. 21, § 13.1(8).
Petitioner was sentenced in 2019 to 20 years of imprisonment, with all but the first eight years suspended, for his convictions of robbery with a dangerous weapon. (Doc. 7, at Ex. 2). Petitioner will have served 85% of that sentence on February 9, 2026. (Id. at 2; Ex. 1). Because Petitioner is not entitled to the application of earned sentence credits to reduce his sentence, he has no state-created liberty interest in said credits. See Alexander v. McCollum, 2014 WL 359236, at *2 (W.D. Okla. Feb. 3, 2014) (holding that petitioner “has no liberty interest in earning good-time credits until he has served 85% of his sentence”) (citing Harrison v. Morton, 490 Fed. App'x. 988, 990 (10th Cir. 2012)). Accordingly, Petitioner cannot establish a due process violation, and he is not eligible for habeas relief on the grounds raised in the Petition. Therefore, Respondent's Motion to Dismiss the Petition (Doc. 7) should be granted. In light of this recommendation, it is not necessary to address Respondent's additional bases for dismissal.
Petitioner argues that the Petition must state a claim for which habeas relief is available because the court ordered a response from Respondent. (Doc. 8, at 8-11). Petitioner relies on Rule 4 of the Rules Governing Section 2254 Cases and 28 U.S.C. § 2243. However, these sources state only that a petition should be dismissed if it is clear from the face of the petition that the petitioner is not entitled to habeas relief. An order from the court for a response does not signify that the court has deemed the petitioner has stated a claim that would entitle him to habeas relief, just that it is not clear from the face of the petition that the action must be dismissed.
III. Petitioner's Miscellaneous Motions (Docs. 9, 10) Should Be Denied.
The court should deny Petitioner's Motion to Object to the Admission of the Attorney General's Motion to Dismiss Filed Out of Time 6/23/21 (Doc. 9) and Request for Default Judgment (Doc. 10).
In his Motion to Object, Petitioner asks that the court strike Respondent's Motion to Dismiss as filed out of time. (Doc. 9). Petitioner's request is based on the incorrect conclusion that Respondent's responsive pleading was due on June 22, 2021. (Id. at 1). On May 24, 2021, the court ordered Respondent to “file an answer, motion, or other response within 30 days from [the] order's date.” (Doc. 5). Thus, Respondent's answer, motion, or other response was due on June 23, 2021. See Fed. R. Civ. P. 6(a) (“When the period is stated in days or a longer unit of time: (A) exclude the day of the event that triggers the period.”). Respondent's Motion to Dismiss was timely filed on June 23, 2021. (Doc. 7). Petitioner's Motion to Object (Doc. 9) should be denied.
In his Reply to Respondent's Motion to Dismiss (Doc. 8), Petitioner also argues that the Respondent should be found in contempt for violating the court's May 24, 2021, Order (Doc. 5) by filing a Motion to Dismiss. (Id. at 12). However, Petitioner is mistaken, as the court's Order for a response stated: “Respondent shall file an answer, motion, or other response.” (Doc. 5) (emphasis added).
Additionally, Petitioner filed a Request for Default Judgment (Doc. 10), requesting default judgment be granted in Petitioner's favor based on Respondent's failure to comply with the court's May 24, 2021, Order. Again, Petitioner's request is based on the erroneous conclusion that Respondent did not timely file his Motion to Dismiss. Petitioner's Request for Default Judgment (Doc. 10) should be denied.
IV. Recommendation and Notice of Right to Object
For the foregoing reasons, it is recommended that the Court GRANT Respondent's Motion to Dismiss (Doc. 7) and that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 be dismissed without prejudice. In addition, Petitioner's Motions (Doc. 9, 10) should be DENIED.
Petitioner is advised of the right to file an objection to this Report and Recommendation with the Clerk of Court by September 20, 2021, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to timely object to this Report and Recommendation waives the 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 issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred.
ENTERED.