The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HERMAN TRACY CLARK, )
)
Petitioner, )
)
v. ) Case No. CIV-19-360-D
)
JEROLD BRAGGS, Warden, )
)
Respondent. )
O R D E R
This matter is before the Court for review of the Report and Recommendation [Doc.
No. 6] issued by United States Magistrate Judge Suzanne Mitchell pursuant to 28 U.S.C.
§ 636(b)(1)(B) and (C). Upon preliminary review of the Petition for a Writ of Habeas
Corpus Under 28 U.S.C. § 2241, Judge Mitchell finds that the Petition should be summarily
dismissed without prejudice because Petitioner plainly is not entitled to the relief sought,
that is, release from custody due to an alleged denial of due process by the Oklahoma
Pardon and Parole Board. Petitioner, a state prisoner appearing pro se, has filed a timely
Objection [Doc. No. 7]. The Court must make a de novo determination of the portions of
the Report to which a specific objection is made, and may accept, reject, or modify the
recommended decision, in whole or in part. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b)(3).
Despite the prolixity of Petitioner’s arguments, it is difficult to determine his points
of disagreement with Judge Mitchell. Liberally construing his arguments due to his pro
se status, Petitioner primarily seems to disagree with Judge Mitchell’s conclusion that the
underlying premise of all his claims is a constitutionally protected liberty or property
interest in parole. But the Court cannot determine from Petitioner’s arguments precisely
where he believes Judge Mitchell has gone wrong, except perhaps for a contention that
Oklahoma law mandates that he receive consideration for parole even if he is not entitled
to parole itself. See, e.g., Obj. at 6 (“the Pardon and Parole Board has a mandatory duty
to consider inmates for parole after they have served one-third of their sentence”).
However, Petitioner does not claim in this action that he has been denied parole
consideration. Instead, Petitioner describes his claim to be that he “is being held in
custody without a sentence because it was abolished upon eligibility for the Board to decide
a new sentence.” See Obj. at 9; see also id. at 10 (asking the Court to “declar[e]
Petitioner’s life sentence is unconstitutional because it is abolished by Legislature”). For
some reason that is unclear, Petitioner seems to believe a legislative change empowered
the Oklahoma Pardon and Parole Board to replace his life sentence with a term of years.
See id. at 2 (“his Life-sentence is unconstitutional and new legislation gave a sentencing
range to be determined by the Board upon his eligibility date”) (emphasis in original).
The Court is not aware of any such law, and none is identified in the Petition or in
Petitioner’s other filings.
In any event, to the extent Petitioner challenges the validity of his life sentence, his
remedy would be a habeas action under 28 U.S.C. § 2254. But Petitioner well knows he
cannot bring such an action without prior authorization from the court of appeals pursuant
to 28 U.S.C. § 2244(b)(3); he has repeatedly been warned by the Tenth Circuit of possible
sanctions if he persists in filing collateral attacks on his 1975 Oklahoma murder conviction.
See In re Clark, No. 13-6053, Order (10th Cir. March 15, 2013). This action appears to
be Petitioner’s latest attempt to evade procedural limits on federal habeas actions under
§ 2254.
Upon de novo consideration of the issues raised by Petitioner’s Objection, the Court
concurs in Judge Mitchell’s finding that the Petition fails to state a claim upon which relief
can be granted under § 2241, and fully concurs in her recommendation for summary
dismissal of the Petition without prejudice.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 6]
is ADOPTED in its entirety. The Petition for a Writ of Habeas Corpus Under 28 U.S.C.
§ 2241 is DISMISSED without prejudice to a future filing. Judgment shall be entered
accordingly.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, the Court must issue or deny a certificate of appealability (“COA”)
when it enters a final order adverse to a petitioner. A COA may issue only if Petitioner
“has made a substantial showing of the denial of a constitutional right.” See 28 U.S.C.
§ 2253(c)(2). “When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon consideration, the Court finds the
requisite standard is not met in this case. Therefore, a COA is DENIED.
IT IS SO ORDERED this 13" day of June, 2019.
TIMOTHY D. DEGIUSTI
UNITED STATES DISTRICT JUDGE