Metoyer v. Fudge

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

WADRESS HUBERT METOYER, JR., )

)

Plaintiff, )

)

v. ) Case No. CIV-19-406-SLP

)

DELYNN FUDGE, et al., )

)

Defendants. )

O R D E R

Before the Court is the Report and Recommendation [Doc. No. 9] issued by United

States Magistrate Judge Bernard M. Jones upon referral of this matter. See 28 U.S.C.

§ 636(b)(1)(B) and (C). Judge Jones conducted an initial screening pursuant to 28 U.S.C.

§ 1915A(a) and (b) and recommends dismissal of Plaintiff’s Complaint. Plaintiff has filed

an Objection [Doc. No. 12] and has also filed a Motion for Discovery and to Produce

Documents [Doc. No. 11]. The Court must now make a de novo determination of the

portions of the Report to which 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); see also Fed. R.

Civ. P. 72(b)(3).

I. Background

Plaintiff, an Oklahoma inmate appearing pro se, brings this action under 42 U.S.C.

§ 1983 for alleged constitutional violations related to his prior parole hearings. Plaintiff is

serving a life sentence for a 1996 first-degree-murder conviction entered in Case No. CF-

95-3479, District Court of Tulsa County, State of Oklahoma, for a crime committed in

1982. His conviction was affirmed by the Oklahoma Court of Criminal Appeals on July

8, 1998 in Case No. F-96-1573.1

Judge Jones noted that “Plaintiff’s Complaint is lengthy” but construed “his

repetitive arguments” as raising the following three claims for relief: (1) Plaintiff has a

liberty interest in parole and Defendants denied him that interest without due process of

law; (2) Oklahoma’s 1997 Truth in Sentencing Act (the Act), which changed the process

for considering an inmate’s eligibility for parole, violates Plaintiff’s equal protection rights;

and (3) the Act violates the Ex Post Facto Clause of the United States Constitution. R&R

at 2.2

Plaintiff objects and contends that Judge Jones has misconstrued the claims raised

in his Complaint. Plaintiff argues he is not bringing a claim that he has a liberty interest in

parole. Instead, Plaintiff argues the Act includes a sentencing matrix “setting a sentencing

range as a guide for parole and a definite end to pre-1988 offender’s [sic] incarceration.”

Pl.’s Obj. at 3. Plaintiff further argues the Act includes language demonstrating that certain

parole hearing procedures are not discretionary, but mandatory, giving rise to a liberty

interest. See id. at 4, 6-7 (citing Okla. Stat. tit. 57, § 332.7(D) and (G)). For the reasons

1 The Court takes judicial notice of these facts from the state court record of Plaintiff’s conviction

and sentence. See also Compl. at 9, 11.

2 Because Plaintiff’s crime was committed prior to the Act’s effective date, the only portions of

the Act that apply to him are those governing the calculation of his eligibility date for parole.

Seegars v. Ward, 124 F. App’x 637, 639 (10th Cir. 2005); see also R&R at 1-2 (explaining parole

consideration under the Act).

set forth, Plaintiff’s arguments lack merit and his attempt to establish a liberty interest

subject to due process protections is to no avail.

II. Discussion

Plaintiff appears to concede that the Oklahoma statutes governing parole create no

liberty interest as the decision whether to grant parole to an inmate “lies firmly within the

discretion of the Board, the Department of Corrections, and/or the governor. Koch v.

Daniels, 296 F. App’x 621, 627 (10th Cir. 2008) (citing Boutwell v. Keating, 399 F.3d

1203, 1213-15 (10th Cir. 2005)); see also Clark v. Fallin, 654 F. App’x 385, 388 (10th Cir.

2016) (the Tenth Circuit has “repeatedly concluded” that Oklahoma’s parole system does

not create “a liberty interest that would be protected by the Constitution’s guarantee of due

process).

In an attempt to end-run this well-established law, Plaintiff argues that the Act

requires the Oklahoma Pardon and Parole Board (Board) to implement a procedure to

determine what sentence Plaintiff would have received under the applicable matrices of the

Act. As the Tenth Circuit has explained the Act “originally included matrices of sentencing

ranges for various crimes.” Seegars, 124 F. App’x at 638. “Although the Oklahoma

legislature soon repealed the sentencing matrices, the matrices are still used in calculating

parole eligibility dates.” Id. (citing Okla. Stat. tit. 57, § 332.7(A)(3)).

Plaintiff does not argue his parole eligibility date has been improperly determined

and “it is clear that the sole purpose of any recalculation [of Plaintiff’s sentence under the

Act] is to determine the date upon which the inmate becomes eligible for parole

consideration.” Campbell v. Province, No. CIV-06-382-RAW, 2008 WL 268186 at *3

(E.D. Okla. Jan. 29, 2008) (unpublished op.). Plaintiff’s contention that the purpose of the

matrix is to set “a sentencing range as a guide for parole and a definite end to

incarceration,” see Obj. at 2, is misguided. See Seegars, 124 F. App’x at 638-39 (rejecting

argument that the Act’s language requiring procedures for determining “what sentence the

person would have received under the applicable matrix” gave prisoner the right to have

his life sentence modified to a determinable number of years; the statute’s language

“focus[es] exclusively on the calculation of parole eligibility dates”).

Plaintiff’s argument that he has a due process right to certain procedures being

followed during his parole consideration also fails. Plaintiff relies on subsections (D) and

(G) of the Act.3 Plaintiff appears to rely on use of language utilizing the word “shall” in

3 The applicable subsections provide:

D. The parole hearings conducted for persons pursuant to paragraph 3 of

subsection A of this section or for any person who was convicted of a violent crime

as set forth in Section 571 of this title and who is eligible for parole consideration

pursuant to paragraph 1 of subsection A of this section, subsection B or paragraph

2 of subsection C of this section shall be conducted in two stages, as follows:

1. At the initial hearing, the Pardon and Parole Board shall review the completed

report submitted by the staff of the Board and shall conduct a vote regarding

whether, based upon that report, the Board decides to consider the person for parole

at a subsequent meeting of the Board; and

2. At the subsequent meeting, the Board shall hear from any victim or

representatives of the victim that want to contest the granting of parole to that

person and shall conduct a vote regarding whether parole should be recommended

for that person.

* * *

G. The Pardon and Parole Board shall promulgate rules for the implementation of

subsections A, B and C of this section. The rules shall include, but not be limited

to, procedures for reconsideration of persons denied parole under this section and

procedure for determining what sentence a person eligible for parole consideration

these subsections to argue the Act gives rise to a protected liberty interest. But the Tenth

Circuit has rejected similar arguments. See Clark, 654 F. App’x at 388 (rejecting

Oklahoma prisoner’s challenge to the denial of parole “as well as the process by which”

he was denied parole on grounds no liberty interest in parole exists under Oklahoma law);

Jackson v. Standifird, 503 F. App’x 623, 625 (10th Cir. 2012) (because Oklahoma prisoner

had no liberty interest in parole, he could not make a claim for a denial of procedural or

substantive due process); Koch, 296 F. App’x at 628 (explaining that where a prisoner has

no constitutionally-protected liberty interest in parole, there are no “constitutionally-

protected interests in the process at issue”); Hunter v. Beck, 244 F. App’x 848, 852 (10th

Cir. 2007) (rejecting argument that statutory language mandating processes that might give

a prisoner legitimate expectations in receiving a parole hearing did not created a

constitutionally-protected liberty interest); see also Bridenstine v. Farris, No. CIV-16-498-

R, 2017 WL 454210 at *9 (W.D. Okla. Sept. 15, 2017) (addressing Oklahoma prisoner’s

parole eligibility argument and concluding that even if “Oklahoma law gives Petitioner a

legitimate expectation in being considered for parole ‘at the earliest date’ after he serves

some portion of his prison sentence . . . an expectation of receiving process is not, without

more, a liberty interest protected by the Due Process Clause”) (internal quotation marks

and citations omitted), R&R adopted, 2017 WL 4544611 (W.D. Okla. Oct. 11, 2017).

pursuant to subsection A of this section would have received under the applicable

matrix.

Okla. Stat. tit. 57, § 332.7(D) and (G) (emphasis added).

Plaintiff further appears to argue that he has been denied “his invested liberty

interest” in his eligibility for clemency pursuant to the Act. But as the Tenth Circuit has

held, Oklahoma’s Parole Board “has discretion to decide whether to consider an offender

for clemency, so there is no constitutionally protected liberty interest.” Ward v. Province,

283 F. App’x 615, 618 (10th Cir. 2008); see also Parker v. Dowling, 664 F. App’x 681,

682 (10th Cir. 2016) (under Oklahoma law, the “prospect of commutation is necessarily a

speculative event, one in which the prisoner has no liberty interest protected by the Due

Process Clause” (internal quotation marks and citations omitted)).

For these reasons, the Court rejects Plaintiff’s argument that, contrary to well-

established law, parole should be considered mandatory and not discretionary under the

Act.

Plaintiff also objects to the findings in the Report that he has failed to state a claim

alleging a violation of his equal protection rights. But Plaintiff bases his claim on the same

erroneous assertion that parole in Oklahoma is mandatory, not discretionary. See Obj. at

8-9. Plaintiff otherwise does not challenge the Magistrate Judge’s findings with respect to

this claim. Accordingly, for the reasons set forth by the Magistrate Judge, the Court finds

dismissal of Plaintiff’s equal protection claim is proper.

Plaintiff does not challenge any other findings set forth in the Report, including the

recommendation that the Court decline to exercise supplemental jurisdiction over

Plaintiff’s claims arising under Oklahoma law. See R&R at 6. The Court has addressed

the specific issues raised by the Objection and finds review of all other issues waived.

iI. Conclusion

In summary, upon de novo consideration of the issues raised by Plaintiff's

Objection, the Court finds that the Complaint fails to state any claim upon which § 1983

relief can be granted. For these reasons, and as further ably explained by Judge Jones in

his Report, the action is dismissed pursuant to 28 U.S.C. § 1915A(b). The Court declines

to exercise supplemental jurisdiction over Plaintiff's claims arising under Oklahoma law

and those claims are dismissed without prejudice. See 28 U.S.C. § 1367(c)(3).

IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 9]

is ADOPTED as set forth herein. This action is DISMISSED. A separate judgment of

dismissal shall be entered.

IT IS FURTHER ORDERED that Plaintiff’'s Motion for Discovery and to Produce

Documents [Doc. No. 11] is DENIED as MOOT.

IT IS SO ORDERED this 29" day of July, 2019.

/ CZ. kb

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE