Cooper v. Mirandy

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

RANDY S. COOPER,

Petitioner,

v. Civil Action No. 5:16CV85

(STAMP)

PATRICK MIRANDY,

Warden,

Respondent.

MEMORANDUM OPINION AND ORDER

AFFIRMING AND ADOPTING MAGISTRATE

JUDGE’S REPORT AND RECOMMENDATION,

GRANTING RESPONDENT’S MOTION FOR SUMMARY JUDGMENT,

DENYING PETITIONER’S MOTION FOR INFORMATION TO BE EXPUNGED,

AND DENYING PETITION’S MOTION TO APPOINT COUNSEL

The petitioner, Randy S. Cooper, filed this pro se1 petition

under 28 U.S.C. § 2254 challenging decisions by the West Virginia

Parole Board (the “Parole Board”). The case was referred to United

States Magistrate Judge Robert W. Trumble. The respondent filed a

motion for summary judgment, and the petitioner filed a motion for

information to be expunged and a motion to appoint counsel.

Magistrate Judge Trumble issued a report recommending that the

respondent’s motion be granted and that the petitioner’s motions be

denied. The petitioner filed timely objections to the report and

recommendation.

1“Pro se” describes a person who represents himself in a court

proceeding without the assistance of a lawyer. Black’s Law

Dictionary 1416 (10th ed. 2014).

I. Background

On November 4, 1996, the petitioner entered a plea of guilty

to first degree murder, for the murder of his sister, and was

sentenced to life with mercy. In his petition, the petitioner

first argues that the retroactive application of West Virginia Code

§ 62-12-13(a)(5) (recodified at § 62-12-13(e)) violates the ex post

facto provisions of Article 1, § 10 of the United States

Constitution and Article III, § 3 of the West Virginia

Constitution. Second, the petitioner argues that he is entitled to

be released on parole pursuant to West Virginia Code §§ 62-12-1

through 62-12-29 and the due process clause of the United States

Constitution because he successfully completed the rehabilitation

programs ordered by the Parole Board at the conclusion of his 2011

Parole Board hearing. Third, the petitioner argues that the Parole

Board denied him parole in August 2014 based on his positive Human

Immunodeficiency Virus (“HIV”) status, which was a discriminatory

action in violation of the Americans with Disabilities Act of 1990

(the “ADA”), 42 U.S.C. § 12182. Fourth, the petitioner argues that

West Virginia Code § 62-12-13(a)(5) is unconstitutional because it

subjects him to an increase in the punishment he would otherwise be

required to serve on his life with mercy term of confinement.

The respondent filed a motion for summary judgment. In the

motion, the respondent first argues that the petitioner’s first and

fourth claims for relief are time barred under the Anti-Terrorism

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and Effective Death Penalty Act of 1996 (the “AEDPA”), which

establishes a one-year limitation period for filing any federal

habeas corpus petition. The respondent also argues that, even if

not untimely, the petitioner’s contention that West Virginia Code

§ 62-12-13(e) violates ex post facto principles fails on the

merits. Additionally, the respondent argues that, because there is

no constitutional right to be released on parole, the petitioner’s

second claim that he is entitled to be released on parole is

without merit. Lastly, the respondent argues that the petitioner’s

third claim has no merit because his medical condition was not

considered as a factor in his denial of parole.

The petitioner filed a response in opposition to the

respondent’s motion for summary judgment. In response, the

petitioner raises for the first time a number of issues that fall

outside of the four corners of his petition. The petitioner also

argues that the retroactive application of West Virginia Code

§ 62-12-13(e) violates both federal and state ex post facto laws

because it creates a significant risk of increased punishment. The

petitioner then contends that the decision of the West Virginia

Supreme Court of Appeals in State ex rel. Carper v. West Virginia

Parole Board, 509 S.E.2d 864 (W. Va. 1998), violates the separation

of powers doctrine because it effectively rewrote § 62-12-13(e) by

adding vague procedural safeguards in order to permit the statute

to pass constitutional muster. Lastly, the petitioner argues that

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he was wrongly denied parole based, at least in part, on the basis

of his HIV condition, in violation of the ADA.

The respondent filed a reply to the petitioner’s response in

opposition. In reply, the respondent argues again that the

petitioner’s claims grounded on his 2011 probation proceedings are

time-barred by the AEDPA’s one-year statute of limitations. The

respondent also contends that there is record evidence that the

petitioner’s parole denials were not based in any way on his HIV

status.

II. Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de

novo review of any portion of the magistrate judge’s recommendation

to which objection is timely made. Because the petitioner filed

objections to the report and recommendation, the magistrate judge’s

recommendation will be reviewed de novo as to those findings to

which objections were made. As to those findings to which

objections were not filed, those findings and recommendations will

be upheld unless they are “clearly erroneous or contrary to law.”

28 U.S.C. § 636(b)(1)(A).

III. Discussion

A. Constitutionality of West Virginia Code § 62-12-13(e)

The magistrate judge first addresses the claims regarding the

constitutionality of West Virginia Code § 62-12-13(e). The

magistrate judge cites Roller v. Gunn, 107 F.3d 227 (4th Cir.

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1997), a case in which the United States Court of Appeals for the

Fourth Circuit held that the ex post facto clause is not violated

simply because a retroactive reduction in parole review frequency

would “necessarily eliminate an opportunity for early release.”

Roller, 107 F.3d at 235. Rather, a court must inquire whether a

retroactive reduction in parole review frequency creates “a

sufficient risk of increasing the measure of punishment attached to

the covered crimes.” Id. (quoting Cal. Dep’t of Corr. v. Morales,

514 U.S. 499, 509 (1995)).

The magistrate judge recognizes that the petitioner was

convicted of first degree murder in 1996, at which time all state

prisoners were entitled to annual parole consideration after

becoming eligible for parole. The magistrate judge notes that, in

1997, the West Virginia Legislature amended the parole statute to

permit the Parole Board to set off a prisoner’s parole interview

for up to three years for prisoners serving life with mercy

sentences. The Parole Board began to apply the amended statute to

all prisoners regardless of the date of their sentencing. In a

challenge to the amended statute, the West Virginia Supreme Court

of Appeals held that it is constitutional and does not violate the

ex post facto clause of the West Virginia Constitution. See

Carper, 509 S.E.2d at 866 (holding that the amended statute “may be

applied retroactively to prisoners whose relevant offenses occurred

prior to the effective date of the statutory amendment”).

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On de novo review, this Court agrees with the magistrate judge

that, when viewed within the context of West Virginia’s parole

regulations, the statute does not facially increase the

petitioner’s likelihood of punishment. The petitioner’s likelihood

of punishment does not increase because (1) the statute does not

change the length of the sentence in any way; (2) the statute does

not affect the timing of the initial parole consideration, only of

subsequent parole consideration dates; and (3) the 1997 amendment

does not deny the Parole Board the ability to review or grant

parole at any time after parole is initially denied for any inmate

serving a life sentence. This Court notes that, under Carper, the

Parole Board must demonstrate that its decision to deny an inmate

parole review for longer than one year will not work to the

“detriment or disadvantage” of the inmate. Carper, 509 S.E.2d at

871. Thus, the magistrate judge is correct that the amended

statute simply permits less frequent parole reconsideration dates

in situations in which the Parole Board determines that more

frequent consideration is unnecessary.

The petitioner also claims that the Parole Board did not

comply with the requirements of Carper. In Carper, the West

Virginia Supreme Court of Appeals held that the amended statute

“must be applied on a case-by-case basis to prisoners whose

offenses occurred at a time when the law prescribed annual parole

review.” Id. at 871. The magistrate judge concluded that this

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claim rests solely upon alleged violations of state law, and that

claims of state law violations are not cognizable by federal

courts. See Weeks v. Angelone, 176 F.3d 249, 262 (1999) (“[W]hen

a petitioner’s claim rests solely upon an interpretation of state

law case law and statutes, it is not cognizable on federal habeas

review.”). On de novo review, this Court finds that the magistrate

judge is correct that this claim is not cognizable in this Court.

B. Due Process Claim

Next, the magistrate judge addresses the claim regarding

whether the due process clause entitles the petitioner to be

released on parole because he successfully completed all of the

rehabilitation programs ordered by the Parole Board. The

magistrate judge notes that “[t]here is no constitutional or

inherent right of a convicted person to be conditionally released

before the expiration of a valid sentence.” Smith v. Liller, 314

F. Supp. 2d 623, 629 (N.D. W. Va. 2004) (quoting Greenholtz v.

Inmates of the Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979)).

Rather, a state’s parole system must simply provide appropriate

avenues for review pursuant to federal due process. See id. (“If

a state has a parole system, the parole procedures must meet the

due process requirements of the constitution.”).

On de novo review, this Court agrees with the magistrate judge

that the petitioner’s only right regarding parole is that the

Parole Board consider him for parole and decide his case in a

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manner that is not arbitrary or capricious. The magistrate judge

correctly notes that the petitioner makes no allegation that the

Parole Board acted in an arbitrary or capricious manner. In his

objections to the report and recommendation, the petitioner argues

that his positive factors make him a good candidate for parole.

Specifically, the petitioner points to the fact that he has

completed numerous educational and vocational classes, maintained

employment, and been write-up free for eight years.

Despite the petitioner’s objections, this Court agrees with

the magistrate judge that, according to the record, the Parole

Board interviewed the petitioner, reviewed his file, and considered

the positive and negative factors, including his completion of the

rehabilitation programs. Thus, this Court finds that the

petitioner cannot show that the denial of parole was based on an

unreasonable determination of the facts in light of the evidence

presented.

C. Consideration of Positive HIV Status

Lastly, the magistrate judge addresses the petitioner’s claim

that the Parole Board denied him parole based on his positive HIV

status and that the denial violated the ADA. “[T]he ADA prohibits

a public entity from discriminating against a qualified individual

with a disability on the basis of disability.” Thompson v. Davis,

295 F.3d 890, 895 (9th Cir. 2002). However, the ADA “does not

categorically bar a state parole board from making an

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individualized assessment of the future dangerousness of an inmate

by taking into account the inmate’s disability.” Id. at 898 n.4.

On de novo review, this Court agrees with the magistrate judge

that there is no evidence that the Parole Board considered the

petitioner’s HIV status when it denied him parole in August 2014.

In his objections to the report and recommendation, the petitioner

contends that a report from the Huttonsville Correctional Center

describing his HIV condition was used by the Parole Board in making

their decision, and that the respondent made discriminatory

statements about people with HIV. However, according to the

transcript of the parole interview, the petitioner’s HIV status was

not discussed or even mentioned at the interview. Thus, this Court

finds that this claim has no merit.

IV. Conclusion

For the reasons set forth above, the magistrate judge’s report

and recommendation (ECF No. 42) is AFFIRMED AND ADOPTED.

Accordingly, the respondent’s motion for summary judgment (ECF No.

29) is GRANTED, the petitioner’s motion for information to be

expunged (ECF No. 38) is DENIED, the petitioner’s motion to appoint

counsel (ECF No. 39) is DENIED, and the petitioner’s objections to

the report and recommendation (ECF No. 44) are OVERRULED. It is

ORDERED that this civil action be DISMISSED WITH PREJUDICE and

STRICKEN from the active docket of this Court.

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Should the petitioner choose to appeal the judgment of this

Court to the United States Court of Appeals for the Fourth Circuit

on the issues to which objection was made, he is ADVISED that he

must file a notice of appeal with the Clerk of this Court within 60

days after the date of the entry of this order.

IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to the pro se petitioner by certified mail and to

counsel of record herein. Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this

matter.

DATED: March 12, 2018

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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