Bulls v. Estes

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

REGINALD BULLS, )

)

Petitioner, )

)

v. ) Case No.: 5:19-cv-0346-MHH-JEO

)

DEWAYNE ESTES, Warden, et al., )

)

Respondents. )

MEMORANDUM OPINION

In this § 2254 habeas corpus action, pro se petitioner Reginald Bulls

challenges the Alabama Board of Pardons and Paroles’ January 30, 2018 decision to

deny him parole. (Doc. 1, p. 2; Doc. 5, p. 2). Mr. Bulls is incarcerated in Limestone

Correctional Facility. He is serving two terms of life imprisonment with the

possibility of parole for the crimes of first degree rape and sodomy. (Doc. 5, p. 1).

On January 31, 2020, the magistrate judge to whom the case was referred entered a

report in which he recommended that the Court deny Mr. Bulls’s habeas petition.

(Doc. 11). Mr. Bulls has objected to the report. (Doc. 12).

A district court “may accept, reject, or modify, in whole or part, the findings

or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

When a party objects to a report and recommendation, the district court must “make

a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” Id. The Court reviews

for plain error proposed factual findings to which no objection is made, and the Court

reviews propositions of law de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th

Cir. 1993); see also United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per

curiam), cert. denied, 464 U.S. 1050 (1984) (“The failure to object to the

magistrate’s findings of fact prohibits an attack on appeal of the factual findings

adopted by the district court except on grounds of plain error or manifest injustice.”)

(internal citation omitted); Macort v. Prem, Inc., 208 Fed. Appx. 781, 784 (11th Cir.

2006).

As the magistrate judge explained in his report, there is no constitutional right

to parole. See Greenholtz v. Inmates of the Nebraska Penal and Correctional

Complex, 442 U.S. 1, 7 (1999); Ellard v. Alabama Board of Pardons & Paroles, 824

F.2d 937, 942 (11th Cir. 1987). Although the parole statutes of some states create a

liberty interest in parole such that due process rights apply, Alabama is not one of

those states. Monroe v. Thigpen, 932 F.2d 1437, 1441 (11th Cir. 1991). But due

process does prohibit the Alabama Board from knowingly basing a parole decision

on false information. Id., at 1442.

Mr. Bulls reiterates that one of the Board’s reasons for denying him parole is

inherently tainted (though not objectively false) because that reason -- the severity

of his offense -- is immutable. (Doc. 12, p. 2). Mr. Bulls is correct that the severity

of his offense will not change, but that does not mean that he never will qualify for

parole because, as the magistrate judge explained, severity of the offense is one of

thirteen factors that each member of the Board must consider when evaluating an

individual’s eligibility for parole. (Doc. 5-1, p. 1; Doc. 11, p. 8). Although factor 5

– severity of offense – will not change over time, other factors are not static, and Mr.

Bulls’s conduct may impact Board members’ findings concerning other factors. For

example, Mr. Bulls may participate in rehabilitative programs while he is

incarcerated so that factor 1 – refusal to participate in rehabilitative programs – may

not serve as a basis for denying parole. Thus, the parole process is not inherently

tainted.

Mr. Bulls asserts that the Board relied on “false information” because a Board

member “altered” his ORAS score by changing the likelihood of re-offending from

“high” to “moderate.” (Doc. 12, pp. 2-3; see Doc. 5-1).1 Mr. Bulls argues the change

harmed him because “it literally conveys that Bulls will return to prison with another

offense once released. This no doubt influenced the other board members to vote

‘no’ for Bulls’ release on parole.” (Doc. 12 , p. 3). The finding that Mr. Bulls is a

moderate rather than a high risk to reoffend does not harm him; it helps his efforts

to obtain parole. Mr. Bulls may not agree with the assessment, but the assessment

1 “ORAS” stands for Ohio Risk Assessment System, which provides a basis to identify factors

which may contribute to the likelihood of reoffending. See https://drc.ohio.gov/oras (last visited

Feb. 25, 2020).

is not demonstrably false. And it is likely that board members voted “no” for Mr.

Bulls’s parole in part because at least one member of the Board rated Mr. Bulls a

“high risk” to reoffend. (Doc. 5-1, p. 1). Mr. Bulls does not have a due process right

to a particular risk assessment. That assessment is within the discretion of the

members of the Board, and there can be no constitutional violation unless the

assessment is based on information that Board members know is false. See

Greenholtz, 442 U.S. at 10 (noting that parole decisions turn on “discretionary

assessment[s] of a multiplicity of imponderables ….”). Mr. Bulls has not

demonstrated that the risks assessments in the record are based on false information.

Mr. Bulls’s argument that the Board relied on false information by finding

negative input from stakeholders (Doc. 12, p. 3) fares no better. Even if the Board

incorrectly believed it had received negative input from a stakeholder, Mr. Bulls has

not demonstrated that Board members knowingly used false information. See

Slocum v. Georgia State Bd. of Pardons and Paroles, 678 F.2d 940, 942 (11th Cir.

1982) (holding that a Board’s unintentional use of erroneous information does not

offend due process standards). Mr. Bulls’s argument rests on the proposition that

Alabama law did not require victims to be alerted to parole eligibility until after the

Board denied him parole. (Doc. 12, pp. 3-4). The argument is faulty for two reasons.

First, although Alabama law now requires notice to victims concerning probation

eligibility, Mr. Bulls has not demonstrated that victims were prohibited from

receiving notice of parole eligibility when the Board considered Mr. Bulls’s request

for parole. Consequently, the Board may have received negative input from a victim

or from the family member of a victim. In addition, factor 7 – the stakeholder factor

– is not limited to victims. Other stakeholders, such as law enforcement officers,

may have provided negative input concerning Mr. Bulls’s parole elligibility. (Doc.

5-1, p. 1). Therefore, there is no due process violation with respect to factor 7.

Mr. Bulls objects to the failure of the Circuit Court of Montgomery County to

permit discovery before the Circuit Court ruled on his petition for a writ of certiorari.

(Doc. 12, p. 4). Mr. Bulls asserts that discovery “would have proved that the Board

… was using false information again to deny parole, violating Bulls[’s] due process

rights because the Board Members had not completed all phases of ORAS, which

simply proves that individuals were being considered for parole under false

pretenses.” (Doc. 12, p. 4). The state court’s discovery decision is not a basis for

federal habeas relief because Mr. Bulls has not demonstrated that the decision was

contrary to, or involved an unreasonable application of, clearly established federal

law as determined by the Supreme Court of the United States or that the decision

was based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceeding. See 28 U.S.C. § 2254(d); see Slocum, 678

F.2d at 942 (holding that an inmate does not have the right to examine his parole

file). Mr. Bulls’s reliance on Garner v. Jones is misplaced. (Doc. 12, p. 4). In that

case, the United States Supreme Court considered whether a parole board’s

interpretation of a new rule, which could retroactively extend the sentence of

incarcerated inmates, violated the Ex Post Facto Clause. 529 U.S. at 248-49 (2000).

That case does not provide a basis for habeas relief to allow Mr. Bulls to conduct

discovery relating to ORAS training.

Finally, Mr. Bulls reasserts that the state judge who ruled on his petition for

writ of certiorari should have recused because the judge previously had served as

counsel for the Alabama Board of Pardons and Paroles. (Doc. 12, p. 4). As the

magistrate judge noted, the Alabama Court of Criminal Appeals found that there was

no basis for disqualification under Alabama law, and the Court of Criminal Appeals

ultimately affirmed the Board’s decision to deny parole in 2018. (Doc. 11, pp. 2-3).

Therefore, Mr. Bulls cannot demonstrate that the state court decision is the product

of bias.

For the reasons stated above, the Court overrules Mr. Bulls’s objections.

Consistent with the magistrate judge’s recommendation, the Court denies Mr.

Bulls’s habeas petition. Because the petition does not present issues that are

debatable among jurists of reason, the Court will not issue a certificate of

appealability. If Mr. Bulls wishes to appeal, he must request a certificate of

appealability from the Eleventh Circuit Court of Appeals. See 28 U.S.C. § 2253(c);

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000); Rule 11(a), Rules Governing $

2254 Proceedings. By separate order, the Court will dismiss this habeas proceeding.

DONE this 25th day of February, 2020.

oy DELINE HUGHES HAIKALA

UNITED STATES DISTRICT JUDGE