The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
GEORGE BROWN PETITIONER
ADC #106753
V. CASE NO. 4:24-cv-00121-BRW-JTK
DEXTER PAYNE RESPONDENT
Director, ADC
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
INSTRUCTIONS
The following proposed Recommendation has been sent to United States District Judge
Billy Roy Wilson. You may file written objections to all or part of this Recommendation. If you
do so, those objections must: (1) specifically explain the factual and/or legal basis for your
objection and (2) be received by the Clerk of this Court within 14 days of the entry of this
Recommendation. By not objecting, you may waive the right to appeal questions of fact. If no
objections are filed, Judge Wilson can adopt this Recommendation without independently
reviewing the record.
I. Background
Before the Court is Respondent Dexter Payne’s (“Payne”) motion to dismiss Petitioner
George Brown’s (“Brown”) pro se petition for writ of habeas corpus for failure to state a claim.
(Doc. Nos. 1, 8) Brown is an inmate in the Arkansas Division of Correction (ADC). As discussed
below, the undersigned recommends that Payne’s motion be granted, that Brown’s petition be
dismissed with prejudice, and that a certificate of appealability not be issued.
On March 7, 2023, Brown pleaded guilty to aggravated assault under Arkansas Code
Annotated § 5-13-204(a)(1). See State of Arkansas v. George Brown, Independence Cnty. Cir. Ct.
No. 32CR-21-129. He was sentenced to six years’ imprisonment in the ADC.
On February 9, 2024, Brown filed a habeas petition pursuant to 28 U.S.C. § 2254. He does
not challenge the validity of his conviction or sentence. In his petition, however, Brown argues
that Payne’s Parole Board (“Board”) violated state parole law in November 2023 when it denied
and deferred his parole transfer eligibility for a two-year period. It appears he contends that the
Board should have followed one of two options: (1) transferred him to the Division of Community
Correction (DCC) by February 27, 2024, which was the earliest projected transfer eligibility date
on the ADC’s time computation card, or (2) denied his transfer eligibility for no more than one
year and prescribed a course of action for him to take to alleviate the Board’s concerns. He cites
several Arkansas statutory provisions for support. See Ark. Code Ann. §§ 16-93-612, -615,
and -620. He ultimately alleges that his illegal prolonged physical incarceration violates his due
process rights under the Fourteenth Amendment to the United States Constitution. He also states
that the ADC’s leadership should be subjected to federal incarceration for its “hostage for ransom”
schemes.
Payne responded, asking this Court to dismiss Brown’s habeas petition for failure to state
a claim. He asserts that “a state prisoner has no federal constitutional right to be released on parole”
and that “[t]he mere possibility of parole does not create an entitlement to due process under the
Fourteenth Amendment.” For those reasons, Payne further alleges that there is no federally
protected liberty interest or no constitutional due process owed for procedural safeguards in the
state’s discretionary parole or transfer determination process. Brown then replied in opposition to
Payne’s motion to dismiss. (Doc. No. 10)
II. Discussion
This Court may issue a writ of habeas corpus only for a violation of the Constitution, laws,
or treaties of the United States. 28 U.S.C. § 2241(c)(3), 2254(a). Simply put, “[t]here is no federal
constitutional interest in having state officials follow state law or prison officials follow prison
regulations.” Rhodes v. Kelley, No. 5:15-CV-00225-BRW-JTR, 2016 WL 2865374, at *3 (E.D.
Ark. Apr. 22, 2016) (citing Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003)), report and
recommendation adopted, No. 5:15-CV-00225-BRW-JTR, 2016 WL 2755450 (E.D. Ark. May 11,
2016).
It is settled that Arkansas law does not create a liberty interest that attaches to an
expectation of parole, and accordingly, there can be no due process protection under the Fourteenth
Amendment. Hamilton v. Brownlee, 237 Fed. Appx. 114, 115 (8th Cir. 2007) (unpublished); see
Poole v. Straughn, No. 5:15-CV-00259-JLH-BD, 2015 WL 8295612, at *2 (E.D. Ark. Oct. 28,
2015 (citing Persechini v. Callaway, 651 F.3d 802, 808 (8th Cir. 2011)), report and
recommendation adopted, No. 5:15-CV-00259-JLH-BD, 2015 WL 8346321 (E.D. Ark. Dec. 8,
2015). Thus, “the ultimate decision to grant or deny parole rests on the Board’s ‘opinion [whether]
there is a reasonable probability that the inmate can be released without detriment . . . and [is]
willing to fulfill the obligations of a law-abiding citizen.’” Kennedy v. Payne, No.
4:23-CV-00596-LPR-PSH, 2023 WL 9188130, at *2 (E.D. Ark. Sept. 6, 2023) (alterations and
omission in original) (quoting Rhodes, 2016 WL 286537 (quoting Ark. Code Ann. § 16-93-701)),
report and recommendation adopted, No. 4:23-CV-00596-LPR, 2024 WL 112931 (E.D. Ark. Jan.
10, 2024).
Consequently, the Board’s parole determinations are discretionary, and Brown cannot
successfully argue that the Board was required (1) to transfer him to the DCC on the projected
transfer eligibility date stamped on the ADC’s time computation card or (2) to deny and defer the
determination of his transfer eligibility for one year only while prescribing a course of action for
Brown to follow in order to expedite the parole process. The Court highlights that “[Brown]’s
construction and understanding of the relevant statutes . . . is flawed. Despite using ostensibly
‘non-discretionary’ or ‘mandatory’ language, the statutory . . . scheme, as a whole, merely creates
the possibility for early release based on the Board’s opinion regarding a particular individual.”
Rhodes, 2016 WL 2865374, at *4. During the reconsideration screening, the Board upheld denying
and deferring Brown’s transfer eligibility determination for two years and cited the following
reasons for its action: nature and seriousness of the crime, weapon involved, and injury to victim.
Those reasons support the Board’s discretionary opinion and action, and without more, Brown’s
petition does not allege a violation of a federally protected right for which this Court may issue a
writ. The relief he seeks should, therefore, be denied, and Payne’s motion should be granted.
III. Certificate of Appealability
Under Rule 11 of the Rules Governing § 2254 Cases, a federal court must issue or deny a
certificate of appealability when entering a final order adverse to a petitioner. “A certificate of
appealability may issue . . . only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, courts must determine whether
“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal
quotations omitted). Because Brown has not made the requisite showing, the undersigned does not
recommend issuing a certificate of appealability.
IV. Conclusion
For the foregoing reasons, the undersigned recommends that Payne’s motion to dismiss be
GRANTED, Brown’s petition be DISMISSED with prejudice, and a certificate of appealability
be DENIED.
DATED THIS 7th day of January, 2025.
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE