# Thomas v. Stitt

> District Court, W.D. Oklahoma · December 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10388622

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** December 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10388622

## How later opinions describe it (automated extraction)

- noting that the Graham court “took care to distinguish [nonhomicide] offenses from murder…”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

DWAIN EDWARD THOMAS, )
)
Plaintiff, )
)
v. ) Case No. CIV-20-944-D
)
KEVIN STITT, et. al., )
)
Defendants. )

ORDER
This matter comes before the Court for review of the Supplemental Report and
Recommendation [Doc. No. 12] issued by United States Magistrate Judge Gary M. Purcell
pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). In this action brought pursuant to 42 U.S.C.
§ 1983, Plaintiff, a state prisoner appearing pro se, alleges that Oklahoma’s parole system
violates his state and federal constitutional rights.
Judge Purcell recommends that Plaintiff’s action be dismissed on screening for
failure to state a claim upon which relief can be granted. Plaintiff filed a timely objection
[Doc. No. 15] to the Supplemental Report and Recommendation. Accordingly, the Court
must make a de novo determination of issues specifically raised by the objection, and may
accept, modify, or reject the recommended decision. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b)(3).
I. Background
At the age of fifteen, Plaintiff entered a plea of guilty to three counts of Murder in
the First Degree and was “sentenced to life imprisonment on each count, with two counts
to run concurrently with each other but consecutively to the third.” Thomas v. State, No.
PC-2019-116 (Okla. Crim. App. Sept. 6, 2019). Although sentenced to “life
imprisonment,” under applicable Oklahoma law, Plaintiff is “eligible for parole

consideration after serving fifteen years of each of his consecutive sentences.” Id. In fact,
Plaintiff has already been considered for parole on several occasions. See Compl. at ¶ 111.
Plaintiff does not dispute these facts, but asserts that, as a juvenile offender, Oklahoma’s
parole system denies him a “meaningful and realistic opportunity for release” in violation
of Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). See Pl.’s Obj. at 3, 8-9, 11.
In Graham, 560 U.S. at 74, the Supreme Court held “that for a juvenile offender
who did not commit homicide the Eighth Amendment forbids the sentence of life without
parole.” The Court reasoned that the distinctive and transitory attributes of youth
undermine the penological justifications for imposing a life without parole sentence on

nonhomicide juvenile offenders. Id. at 74. Nevertheless, the Court explained that
[a] State is not required to guarantee eventual freedom to a juvenile offender
convicted of a nonhomicide crime. What the State must do, however, is give
[juvenile nonhomicide offenders] some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation. It is for the State,
in the first instance, to explore the means and mechanisms for compliance. It
bears emphasis, however, that while the Eighth Amendment prohibits a State
from imposing a life without parole sentence on a juvenile nonhomicide
offender, it does not require the State to release that offender during his
natural life. Those who commit truly horrifying crimes as juveniles may turn
out to be irredeemable, and thus deserving of incarceration for the duration
of their lives. The Eighth Amendment does not foreclose the possibility that
persons convicted of nonhomicide crimes committed before adulthood will
remain behind bars for life. It does prohibit States from making the judgment
at the outset that those offenders never will be fit to reenter society.
Id. at 75.
In Miller, 567 U.S. at 471, which involved two juvenile homicide offenders, the
Supreme Court reiterated Graham’s reasoning that “children are constitutionally different

from adults for purposes of sentencing.” The Court then held that “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without possibility of parole for
juvenile offenders.” Id. at 479. Thus, before determining that life without parole is a
proportionate sentence for a juvenile offender, a sentencer is “require[d] to take into
account how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Id. at 480. Miller’s ban on mandatory life without
parole sentences for juvenile offenders was given retroactive effect in Montgomery, where
the Court instructed that Miller violations could be remedied “by permitting juvenile
homicide offenders to be considered for parole, rather than by resentencing them.”
Montgomery, 136 S.Ct. at 736.

Relying on this trilogy of cases, Plaintiff asserts that he has been subjected to cruel
and unusual punishment in violation of the Eighth Amendment and the Oklahoma
Constitution. He also seeks a declaratory judgment that Okla. Stat. tit. 57, § 332.7, which
sets forth certain parole procedures, is unconstitutional. For the reasons explained below,
the Court agrees with Judge Purcell that Plaintiff has failed to state a claim upon which

relief can be granted.
II. Eighth Amendment Claim
Plaintiff’s first claim asserts that Oklahoma’s parole system violates the Eighth
Amendment by denying him a meaningful opportunity to obtain release. See Compl. at ¶¶
121-126. In rejecting this claim, Judge Purcell concluded that Plaintiff’s reliance on Miller
is misplaced because he was not sentenced to mandatory life without parole or its
equivalent. See Supp. R&R at 8. The crux of Plaintiff’s objection is that, as a juvenile

offender, Graham, Miller, and Montgomery require that he receive more than just parole
consideration – he must receive a meaningful opportunity to obtain release. See Pl.’s Obj.
at 8-10. Oklahoma’s parole system, he argues, fails to provide him a meaningful
opportunity because it functions like an arbitrary system of executive clemency and relies
on unfair assessment tools. Id. at 8.

Graham indeed held that juvenile nonhomicide offenders must be afforded “some
meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.” But “Graham’s holding is limited to offenders convicted of non-homicide
offenses.” Rainer v. Hansen, 952 F.3d 1203, 1207 (10th Cir. 2020); see also Miller, 567
U.S. at 473 (noting that the Graham court “took care to distinguish [nonhomicide] offenses

from murder…”). Thus, to the extent Graham imposes certain requirements on a state’s
parole system, those requirements do not extend to juvenile homicide offenders such as
Plaintiff. See Lewis v. Oklahoma Pardon & Parole Bd., No. CIV-18-1205-G, 2019 WL
1500671, at *2 (W.D. Okla. Apr. 5, 2019) (finding that “because Plaintiff was convicted
of homicide, he does not fall within the category of juvenile offenders entitled to a

‘meaningful opportunity for release’ under Graham.”).
As for Miller, it prohibits mandatory life-without-parole sentences for juvenile
offenders. Miller, 567 U.S. at 479. Montgomery made this holding retroactive, and
specifically provided that a Miller violation could be remedied by permitting juvenile
homicide offenders to be considered for parole. Montgomery, 136 S. Ct. at 736. Neither of
these cases, however, expanded existing parole procedures for persons convicted as
juveniles. And while Miller’s holding included a procedural component in that it “requires

a sentencer to consider a juvenile offender's youth and attendant characteristics before
determining that life without parole is a proportionate sentence,” id. at 734 (citing Miller,
567 U.S. at 483), that procedure was not violated here because Plaintiff was not sentenced
to life without parole. Accordingly, the Court finds that Plaintiff has failed to state a viable
Eighth Amendment claim.

III. Claim for Declaratory Judgment
Plaintiff additionally seeks declaratory judgment that the parole procedures outline in
Okla. Stat. tit. 57, §332.7 are unconstitutional because they do not require the parole board
to consider an offender’s youth at the time of the crime. See Compl. at ¶¶ 134-137. Plaintiff
brings this claim under the Declaratory Judgment Act, 28. U.S.C. § 2201, which provides

that “[i]n a case of actual controversy within its jurisdiction…any court of the United
States, upon the filing of an appropriate pleading, may declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further relief is
or could be sought.” The Act gives “federal courts competence to make a declaration of
rights,” but it does “not impose a duty to do so.” State Farm Fire & Cas. Co. v. Mhoon,

31 F.3d 979, 982 (10th Cir. 1994) (internal quotation omitted).
As explained in the Supplemental R&R, Oklahoma has chosen to remedy Miller
violations – meaning juvenile homicide offenders who were sentenced to life without
parole – through the State’s post-conviction procedure rather than the parole process. See
Supp. R&R at 9-10. Given this practice, Judge Purcell recommends that the Court decline
to exercise jurisdiction over this claim as it could increase friction between federal and
state courts. Id. Plaintiff objects to this recommendation and points to the fact that there

are no pending parallel state court proceedings. See Pl.’s Obj. at 27-28.
The Court agrees with Judge Purcell’s analysis on this issue. Issuing judgment as to
the constitutionality of Oklahoma’s parole procedure could improperly encroach upon state
jurisdiction given their practice of remedying Miller violations through post-conviction
procedures. Further, as explained supra, Plaintiff’s claim that Oklahoma’s parole

procedures are unconstitutional fails because neither Miller nor Montgomery expanded
existing parole procedures for persons convicted as juveniles. Accordingly, the Court
declines to exercise jurisdiction over Plaintiff’s declaratory judgment claim.
IV. State Law Claim
Plaintiff’s final claim asserts that Oklahoma’s parole system violates Okla. Const.

Art II, § 9 by denying him a meaningful opportunity to obtain release. See Compl. at ¶¶
127-131. As Plaintiff has not alleged a viable federal claim, the Court declines to exercise
supplemental jurisdiction over Plaintiff's state law claims. See 28 U.S.C. § 1367(c)(3);
Smith v. City of Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th Cir. 1998).
CONCLUSION

IT IS THEREFORE ORDERED that the Supplemental Report and
Recommendation [Doc. No. 12] is ADOPTED in its entirety. Plaintiff’s Complaint is
dismissed without prejudice. A separate judgment shall be entered.
IT IS SO ORDERED this 21“ day of December, 2020.

Nd Q.Oyht
TIMOTHY D. DeGIUSTI
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10388622. Public record. Not legal advice.