FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS January 27, 2009 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court
ALVIN PARKER,
Petitioner - Appellant,
v. No. 08-6124 (W.D. Okla.) WALTER DINWIDDIE, Warden, (D.Ct. No. 5:08-CV-00114-D)
Respondent - Appellee. ____________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING APPEAL
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Alvin Parker, a state prisoner proceeding pro se, 1 seeks a Certificate of
Appealability (COA) to appeal from the denial of his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. 2 We deny a COA.
I. Background
Parker filed a habeas corpus petition claiming the Oklahoma Pardon and
Parole Board denied him due process when the Board considered false
1 Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003) 2 Parker originally filed his petition using a § 2254 form but the district court treated his petition as a § 2241 petition in accordance with Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002). information in refusing to recommend him for specialized parole. See Okla. Stat.
tit. 57, § 365 (specialized parole). The State responded to Parker's petition with a
motion to dismiss for failure to state a claim upon which relief could be granted.
The magistrate judge issued a report and recommendation recommending the
state's motion be granted because Parker did not have a liberty interest under the
Oklahoma parole statute. Parker objected arguing he had a constitutionally
protected liberty interest under § 365, the specialized parole statute. He claimed
the more specific statute affords rights different from those in the general parole
statute, Okla. Stat. tit. 57, § 332. He further argued, even absent a liberty
interest, he had a due process right not to be denied parole based on false
information. The district court rejected his arguments.
Parker filed a motion to alter or amend the judgment followed by a motion
to amend his petition to add another claim. The district court denied these
motions and denied Parker's request for a COA. 3 Parker renews his request for a
COA with this Court.
II. DISCUSSION
A COA is a jurisdictional pre-requisite to our review. Montez v. McKinna,
208 F.3d 862, 867 (10th Cir. 2000). We will issue a COA only if Parker makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
3 The district court granted Parker’s motion to proceed in forma pauperis on appeal.
-2- § 2253(c)(2). To make this showing, he must establish that “reasonable jurists
could debate whether . . . the petition should have been resolved [by the district
court] in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted).
The district court denied Parker's petition because the Board's statutory
discretion precluded the creation of a liberty interest in parole. Further, Parker
failed to allege the state officials relied on admittedly false information in the
decision to deny parole.
The resolution of Parker's claims is not subject to debate.
A. Liberty Interest
A state's parole statute can create a liberty interest in the expectancy of
parole only when the statute's language and structure sufficiently limits the
discretion of a parole board. See Bd. of Pardons v. Allen, 482 U.S. 369, 381
(1987) (determining a Montana parole statute created a liberty interest in the
expectancy of parole by its use of mandatory language); Greenholtz v. Inmates of
the Neb. Penal & Corr'al. Complex, 442 U.S. 1, 12 (1979) (determining a
Nebraska parole statute's mandatory language created a liberty interest); but see
Jago v. Van Curen, 454 U.S. 14, 20-21 (1981) (Ohio statute did not create a
liberty interest in the expectancy of parole because parole decision is
discretionary).
-3- The relevant Oklahoma parole statute provides:
A. Persons in the custody of the Department of Corrections sentenced for crimes committed prior to July 1, 1998, who meet the following guidelines may be considered by the Pardon and Parole Board for a specialized parole:
[list of guidelines]4
B. Upon an inmate becoming eligible for specialized parole it shall be the duty of the Pardon and Parole Board, with or without application being made, to cause an examination to be made of the criminal record of the inmate and to make inquiry into the conduct and the record of the inmate during confinement in the custody of the Department of Corrections.
C. Upon a favorable finding by the Pardon and Parole Board, the Board shall recommend to the Governor that the inmate be placed on specialized parole. If approved by the Governor, notification shall be made to the Department of Corrections that said inmate has been placed on specialized parole.
Okla. Stat. tit., 57 § 365. Citing no authority, Parker argues the words “favorable
finding” in subsection C means a determination that the prisoner met the listed
eligibility requirements. Coupled with the “shall recommend” language of
subsection C, he argues the Board must recommend specialized parole for every
eligible prisoner. He is wrong.
While the Board is required to make inquiry into the record of every
eligible prisoner, it is not limited to the listed eligibility requirements in reaching
4 The guidelines include the prisoner’s relevant projected release date, the prisoner’s completion of an available educational or rehabilitation program and a requirement the prisoner is not incarcerated for an offense for which parole is prohibited pursuant to law.
-4- a “favorable finding.” Parker's argument ignores the statutory requirement for the
Board to “cause an examination to be made of the criminal record of the inmate
and to make inquiry into the conduct and the record of the inmate during
confinement.” Okla. Stat. tit., 57 § 365(B). Requiring consideration of criminal
records as well as institutional conduct would be a hollow exercise absent
considerable Board discretion in correlating those factors into an ultimate
recommendation. See Boutwell v. Keating, 399 F.3d 1203, 1214 (10th Cir. 2005)
(“[W]hile the statute places restraints on eligibility for [Pre-Parole Conditional
Supervision] placement, it in no way limits the Parole Board's discretion as to
which of the eligible inmates should be recommended.”).
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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS January 27, 2009 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court
ALVIN PARKER,
Petitioner - Appellant,
v. No. 08-6124 (W.D. Okla.) WALTER DINWIDDIE, Warden, (D.Ct. No. 5:08-CV-00114-D)
Respondent - Appellee. ____________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING APPEAL
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Alvin Parker, a state prisoner proceeding pro se, 1 seeks a Certificate of
Appealability (COA) to appeal from the denial of his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. 2 We deny a COA.
I. Background
Parker filed a habeas corpus petition claiming the Oklahoma Pardon and
Parole Board denied him due process when the Board considered false
1 Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003) 2 Parker originally filed his petition using a § 2254 form but the district court treated his petition as a § 2241 petition in accordance with Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002). information in refusing to recommend him for specialized parole. See Okla. Stat.
tit. 57, § 365 (specialized parole). The State responded to Parker's petition with a
motion to dismiss for failure to state a claim upon which relief could be granted.
The magistrate judge issued a report and recommendation recommending the
state's motion be granted because Parker did not have a liberty interest under the
Oklahoma parole statute. Parker objected arguing he had a constitutionally
protected liberty interest under § 365, the specialized parole statute. He claimed
the more specific statute affords rights different from those in the general parole
statute, Okla. Stat. tit. 57, § 332. He further argued, even absent a liberty
interest, he had a due process right not to be denied parole based on false
information. The district court rejected his arguments.
Parker filed a motion to alter or amend the judgment followed by a motion
to amend his petition to add another claim. The district court denied these
motions and denied Parker's request for a COA. 3 Parker renews his request for a
COA with this Court.
II. DISCUSSION
A COA is a jurisdictional pre-requisite to our review. Montez v. McKinna,
208 F.3d 862, 867 (10th Cir. 2000). We will issue a COA only if Parker makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
3 The district court granted Parker’s motion to proceed in forma pauperis on appeal.
-2- § 2253(c)(2). To make this showing, he must establish that “reasonable jurists
could debate whether . . . the petition should have been resolved [by the district
court] in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted).
The district court denied Parker's petition because the Board's statutory
discretion precluded the creation of a liberty interest in parole. Further, Parker
failed to allege the state officials relied on admittedly false information in the
decision to deny parole.
The resolution of Parker's claims is not subject to debate.
A. Liberty Interest
A state's parole statute can create a liberty interest in the expectancy of
parole only when the statute's language and structure sufficiently limits the
discretion of a parole board. See Bd. of Pardons v. Allen, 482 U.S. 369, 381
(1987) (determining a Montana parole statute created a liberty interest in the
expectancy of parole by its use of mandatory language); Greenholtz v. Inmates of
the Neb. Penal & Corr'al. Complex, 442 U.S. 1, 12 (1979) (determining a
Nebraska parole statute's mandatory language created a liberty interest); but see
Jago v. Van Curen, 454 U.S. 14, 20-21 (1981) (Ohio statute did not create a
liberty interest in the expectancy of parole because parole decision is
discretionary).
-3- The relevant Oklahoma parole statute provides:
A. Persons in the custody of the Department of Corrections sentenced for crimes committed prior to July 1, 1998, who meet the following guidelines may be considered by the Pardon and Parole Board for a specialized parole:
[list of guidelines]4
B. Upon an inmate becoming eligible for specialized parole it shall be the duty of the Pardon and Parole Board, with or without application being made, to cause an examination to be made of the criminal record of the inmate and to make inquiry into the conduct and the record of the inmate during confinement in the custody of the Department of Corrections.
C. Upon a favorable finding by the Pardon and Parole Board, the Board shall recommend to the Governor that the inmate be placed on specialized parole. If approved by the Governor, notification shall be made to the Department of Corrections that said inmate has been placed on specialized parole.
Okla. Stat. tit., 57 § 365. Citing no authority, Parker argues the words “favorable
finding” in subsection C means a determination that the prisoner met the listed
eligibility requirements. Coupled with the “shall recommend” language of
subsection C, he argues the Board must recommend specialized parole for every
eligible prisoner. He is wrong.
While the Board is required to make inquiry into the record of every
eligible prisoner, it is not limited to the listed eligibility requirements in reaching
4 The guidelines include the prisoner’s relevant projected release date, the prisoner’s completion of an available educational or rehabilitation program and a requirement the prisoner is not incarcerated for an offense for which parole is prohibited pursuant to law.
-4- a “favorable finding.” Parker's argument ignores the statutory requirement for the
Board to “cause an examination to be made of the criminal record of the inmate
and to make inquiry into the conduct and the record of the inmate during
confinement.” Okla. Stat. tit., 57 § 365(B). Requiring consideration of criminal
records as well as institutional conduct would be a hollow exercise absent
considerable Board discretion in correlating those factors into an ultimate
recommendation. See Boutwell v. Keating, 399 F.3d 1203, 1214 (10th Cir. 2005)
(“[W]hile the statute places restraints on eligibility for [Pre-Parole Conditional
Supervision] placement, it in no way limits the Parole Board's discretion as to
which of the eligible inmates should be recommended.”).
Even more important is the permissive language of Okla. Stat. tit., 57
§ 365(A): “Persons . . . who meet the . . . guidelines may be considered by the
Pardon and Parole Board for a specialized parole.” (emphasis added). Meeting
the eligibility requirements is a necessary but not always sufficient reason for the
Board to recommend specialized parole. Since the Board has discretion, Parker
has no liberty interest in receiving specialized parole.
B. Reliance on False Information
Parker failed to sufficiently support his due process claim regarding the
board's reliance on allegedly false information. In Monroe v. Thigpen, the
Eleventh Circuit held although the Alabama parole statute did not confer a liberty
interest in parole, the parole board violated a prisoner's right to due process when
-5- it relied upon admittedly false information in determining whether to grant parole.
932 F.2d 1437, 1442 (11th Cir. 1991). We have not adopted (and do not now
adopt) the Eleventh Circuit's due process construction but, even if we were to do
so, Parker has not alleged the necessary facts to support his claim.
The false information alleged by Parker is the testimony of the State's
expert, who has since been discredited. At Parker's trial, the expert averred the
forensic evidence linked Parker to commission of his crime. Parker now seems to
allege the Board's parole decision was based on his guilt, an improper
consideration because the verdict was based on false testimony. We have
previously considered and rejected Parker's claim that he was falsely convicted
based upon tainted expert testimony. Parker v. Sirmons, 237 Fed. Appx. 334
(2007). That determination is not subject to reconsideration in this context.
Not only has Parker failed to show the evidence of his guilt false, he has failed to
allege any facts demonstrating the expert’s testimony was considered by the
Board in denying his parole. Under Monroe, “prisoners do not state a due process
claim by merely asserting that erroneous information may have been used during
their parole consideration.” 932 F.2d 1442 (emphasis added). Other than
connecting Parker to the crime for which he was convicted, he fails to allege how
the expert testimony might be relevant to parole considerations.
-6- We DENY Parker’s request for a COA and DISMISS his appeal. The
“Petition for Writ of Extraordinary Writ of Habeas Corpus,” is DENIED.
Entered by the Court:
Terrence L. O’Brien United States Circuit Judge
-7-