Tydel John v. Wynnie Testamark, Director of the U.S. Virgin Islands Bureau of Corrections, Government of the Virgin Islands

• Court: Superior Court of The Virgin Islands
• Decided: September 22, 2021
• Docket: SX-19-MC-33
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST CROIX

TYDEL JOHN 7

PETITIONER l SX 19 MC 33

v PETITION FOR WRIT OF HABEAS 7 CORPUS WYNNIE TESTAMARK DIRECTOR OF ' THE U S VIRGIN ISLANDS BUREAU OF P CORRECTIONS GOVERNMENT OF THE ‘ VIRGINISLANDS ETAL ,

RESPONDENTS ,

Cite as 2021 VI SUPER U96

Mr Tydel John #14 3826 CCA/Citrus County Detention Facility #2604 West Woodland Ridge Dr Lecanto Florida 34461

Attorney Ian S A Clement, Esq , Assistant Attorney General Vixgin Islands Depdltment of Justice #34 38 Kronprindsens Gade GERS Complex 2nd Floor St Thomas USV100802

MEMORANDUM ORDER

‘11 1 THIS MATTER is before the Court on the Petition of Tydel John

(hereinafter Petitioner) seeking a Writ of Habeas Corpus Because the

Petitioner has failed to allege facts Which show that he is being

unlawfully restrained in Violation of a constitutional or statutory right

the petition is DENIED Tydel John v Wmme Testathark VI SUPER U96 Petmon for Habeas Corpus 3X 19 MC 033 PageZ

FACTUAL BACKGROUND

‘1 2 In December 2007 Petitioner was arrested and subsequently

charged in an information with various offenses relating to sexual

conduct involving minors After a tria} conducted from August 28 2012

through September 14 2012 a Jury found the Petitloner guilty of six

counts of First Degree Unlawful Sexual Contact one count of First

Degree Aggravated Rape and one count of Child Abuse Petitioner filed a

motion for Judgment of acquittal which the Court granted in part by

dismissing the other Child Abuse charges but denied with respect to all

other counts The Court sentenced the Petitioner to fifteen (15) years

incarceration on each of the convictions for First Degree Unlawful Sexuai

Contact and fifty (50) years incarceration on the conviction for First

Degree Agglavated Rape One count of Unlawlul Sexual Contact was held

in abeyance to be dismiseed upon completion of the sentence pursuant

to Tit 14 VI C § 104 The sentences for the Unlawful Sexual Contact

were to be served concurrently and were also to run concurrent with the

sentence for First Degree Aggravated Rape The Courts sentence was

memorialized in an order of Judgment and Commitment entered on June

20 2014 Petitioner appealed his conviction and sentence to the Virgin

Islands Supreme Court The Supreme Court in a memorandum opinion

issued on September 24 2015 affirmed the conviction and sentence but

2 Tydel John v Wmme Testamark VI S UPER U96 Petition for Habeas Corpus SX 19 MC 033 Page3

noted that due to a scriveners error the Judgment and Commitment

order misidentified the sentence imposed for count 7 Unlawful Sexual

Contact as the sentence imposed for count 3 Child Abuse and failed to

state that count 8 Child Abuse was dismissed

(II 3 In response to the Supreme Courts finding of error the Superior

Court entered an amended order of Judgment and Commitment on June

6 2016 Nunc Pro Tune June 20 2014

CH 4 Petitioner began serving his sentence at the Golden Grove

Correctional Facility and was later transferred to Citrus County

Detention Facility where he is currently incarcerated Petitioner filed this

petition for Writ of Habeas Corpus alleging that the Virgin Islands

Bureau of Corrections ( BOC ) has miscalculated his credits for pretrial

detention and parole eligibility date thereby depriving him of his liberty

to palole eligibility

THE LEGAL STANDARD

‘31 5 Every person unlawfully imprisoned 0r restrained of his liberty

under any pretense whatever may prosecute a writ of habeas corpus to

inquire in into the cause of such imprisonment or restraint Tit 5 VI C

§1301

(ll 6 Title 5 §4601 of the Virgin Islands Code provides

Except for a prisoner sentenced to a term of life imprisonment Without parole every prisoner confined to any pemtentiary Jail 0r prison for a violation of Virgin Islands Law for a definite term or terms

3 Tydel John v "lllllle Testamark VI SUPER U96 Petition for Habeas Corpus SX 19 MC 033 Page4

of over 180 days or for the term of his natural life whose record of conduct shows that he has observed the rules of the institution in Which he is confined upon recommendation of the Director of the Bureau of Corrections supported by the recommendation of a psychiatrist and/or psychologist may be released on parole after serving one half of such term or terms or after serving fifteen (15) years of a life sentence or of a sentence of thirty [30) years or more or after serving minimum sentence required by law whichever is greater provided however that the Board of Parole in its discretion by at least a two thirds affirmative vote of all its members upon recommendation by the Directors of the Bureau of Corrections supported by the recommendation of a psychiatrist and/or physiologist is authorized to fix an earlier eligibility date for the release of a prisoner on parole after serving one third of his term or terms or after serving ten (10) years of a life sentence or of a sentence of thirty (30) years or more

(ii 7 The Court must issue an order granting a writ of habeas corpus if

the petitioner has alleged prima facie grounds showing entitlement to

relief and the Claims are not legally barred VI Hab Corp R 2{d)(1) A

petition states a prima facie case if it aileges facts which if true entitie

the petitioner to relief VI Hab Corp R 2(b)(1)

ANALYSIS

A. Section 4601 Does Not Create a Right to Parole

(ll 8 Under Virgin Islands law habeas corpus is available to provide

redress for unlawful confinement or restraint of liberty in Violation of an

individuals Constitutional or statutory rights In order for a writ of

habeas corpus to be granted the Petitioner must show deprivation of a

constitutional or statutory created right and such deprivation imposes

an unlawful restraint on his liberty Here the Petitioner alleges that the

4 Tydel John v Wmme Testamark V] SUPER U96 Petition for Habeas Corpus 5X 19 MC 033 Page5

miscalculation of his parole eligibility date constitutes a deprivation of

his right and places an unlawful restraint on his liberty More

particularly the Petitioner states that the BOC has calculated his parole

eligibility date in a manner which makes him eligible for parole after

having served twenty five (25) years or half of his fifty (50) year sentence

rather than after having served fifteen (15] years of a sentence of thirty

(30) years or more Section 4601 states that a person may be released

on parole after serving half the term of his sentence or after serving 15

years of a life sentence or a sentence of 30 years or more or after serving

the minimum sentence required by law whichevei is greater 5 VI C §

4601 Apparently the BOC interprets the statute in a way that allows the

BOC to choose the greater of all the available options This Court agrees

that to the extent that the BOC applies this formula to calculate the

Petitioners paiole eligibility date it is inaccurate A prisoner sentenced

to a term of mole than 30 yeais of iiiiplisomnent will become eligible for

parole after serving 15 years unless the crime of which he or she is

convicted carfies a greater minimum penalty Martinez 0 COL t of the VI

2016 V I LEXIS 201 at 10 (Super Ct 2016) (finding that the

interpretatlon of the statute which allows the BOC to apply a formula by

which it chooses the greater of the three options for determining parole

5 Tydel John v Wmme Testamurk V] S UPER U96 Petztton for Habeas Corpus SX 19 MC 033 Page 6

eligibility leads to results that am inconsistent with the intent of the

Legislature‘)

(II 9 The Petitioner has no constitutional or statutory right to parole

The Virgin Islands Supreme Court has held that the Virgin Islands

statutory mechanism for parole eligibility does not create a right to be

released on parole There is no constitutional or inherent right of a

convicted person to be conditionally released before the expiration of a

valid sentence Smith v Employees of the Bureau of Corrections 64 VI

383 386 (VI 2016) (citing Greenholtz v Inmates of Nebraska Penal &

Correction Complex 442 US l 7 (1979) The Court further states a right

for parole review or eligibility may be created by statute but the statute

must be mandatory rather than discretionary Id at 387 The Court

concluded that section 4601 is discretionary and not a mandate to the

BOC to determine and g1 ant paxole

‘11 10 It is clear that section 4601 git es the BOC the discretion to

determine whether a prisoner has met the good conduct requirements

and has served the portion of his sentence in a manner that meets parole

eligibility requirements Under Section 4601 parole eligibility is subject to

the recommendation of the Director of the Bureau of Corrections

‘ In M(nque thL Court nottd that the f01muld whereby [ht Bureau LhOUSBS the greater 0! halt 01 the semen“ 15 years 0! a scntenu 0t 30 years or more and the minimum sentence 1Lquired b) {aw would make the 15 yea: eligibility proxision USLILSS and lead to absurd results For instance exer) sententc greater than 30 years would lead to a calculation beyond the 13 year eligibilit) provision Moreover a prisoner sentenced to life will become eligible for parole after 15 years but a prisoner sentenced to a term of greater than ‘40 years for a less egregious offense will not be eligible for parole in 15 years The legisiature could not haw: intended these inconsistent results

6 Tydel John v Wmme Testamark VI SUPER U96 Petitionfor Habeas Corpus SX 19 MC 033 Page 7

supported by the recommendation of a psychiatrist and/or psychologist

The statute does not create a right to parole eiigibility or review but

grants corrections officials the discretion to determine parole eligibility

Therefore Petitioner cannot claim the deprivation of such a right

B The Facts do not Support Unlawful Confinement or Restraint

‘11 11 Petitioner is in the custody of the BOC serving a lawful sentence

pursuant to his conviction for criminal offenses Petitioner seeks habeas

corpus relief on the premise that BOC s miscalculation 0f the time of his

pretrial detention and his parole eligibility date constitutes an unlawful

restraint on his liberty Even if the Court were to require BOC to

calculate the date that Petitioner could be eligible for parole based on the

serving of 15 years with credit for time served in pretrial detention

Petitioner will still not be eligible for a parole hearing until the Director

recommends it 10 be eligible tor parole Petitioner must satisty certain

statutory requirements which include the official determination of his

good conduct and the recommendation of the Director These are the

requirements which trigger Petitioners parole eligibility and not the term

of Petitioners sentence or the amount of time he has served on his

sentence Accordingly Petitioners claim of the denial of a right and an

unlawful restraint on his liberty by an inaccurate parole eligibility

7 Tydel John v Wmme Tatar: k V! SUPER U96 Petition for Habeas Corpus SX 19 MC 033 Page8

calcuiation does not mature until the statutory requirements have been

satisfied

‘11 12 Incidentally Petitioner does not allege that he has met the

requirements which trigger his parole eligibility so that the 8005

miscalcuiation is the only restriction to his access to a parole hearing

Therefore Petitioner is not entitled to a writ of habeas corpus because he

has failed to allege facts that would establish that he has a right to a

parole hearing or to be considered for parole Edwards v Mullgrav 2017

VI LEXIS 139 at *9 [Super Ct 2017)

C Petitioner Has Not Served the Time to Trigger Parole Eligibility

CH 13 Quite apart from the fact that Petitioner has failed to satisfy the

statutory prerequisites which would qualify him for parole consideration

Petitioner has not served the necessary time on his sentence Petitioner

began Strung his sentence on 01 about Septembei 14 2012 Up to this

point Petitioner would haxe sorted approximately nine years of the

sentence Petitioner claims four years two months and eight days as

credit for time served in pretrial detention Even with credit for time

served according to Petitioners calculation Petitioner would not have

served the portion of his sentence that would statutorily make him

eligible for parole review2 Since Petitioners eligibility for parole review

The facts essential to an accurate caiculation of the Petitioner s time in pretrial detention are not at ailable to the Court Therefore the Court makes no finding on the accuracy of Petitioner s calculations

8 Tydel John v Wmme Testainark V] S UPER U96 Petition for Habeas Corpus 3X 19 MC 033 Page9

has not materialized under the provisions of the statute it cannot be

said that Petitioner is confined under an unlawfui restraint Petitioners

claim is that the BOCS calculations are inaccurate If that claim is

correct Petitioner may pursue other means of challenging the

inaccuracy Petitioners claim is not a proper subject for habeas corpus

relief

Conclusion

(It 14 The crux of the Petitioners claim is that the BOC has inaccurately

calculated his time in pretrial detention and has determined that he is

eligible for parole review after serving half his sentence which amounts to

twenty five (25) years Petitioner contends that these inaccuracies

constitute a restraint on his parole eligibility because he is eligible for

parole after serving fifteen (1‘5) years Tit ‘5 VIC § 4601 permits the

BOC t0 detennine paiole eligibility based certain [actors which include

good bchaxior credits and the recommendation of the Director Even if

Petitioners allegations are true there is nothing to indicate that the

Bureau of Corrections is unlawfully restricting the Petitioner of his

liberty through the violation of a constitutional or statutory right

Petitioner failed to state a prima facie case showing an entitlement to

Habeas Corpus relief

Accordingly it is

9 Tydel John v Wmme Testamark VI SUPER U96 Petltum for Habeas Corpus SX 19 MC 033 Page 10

ORDERED that the petition for Writ of Habeas Corpus is hereby

DENIED

DONE AND SO ORDERED this 22nd day of September 2021

HONORABLE J0M0 MEADE JUDGE OF THE SUPERIOR COURT ATT E S T

TAMARA CHARLES Clerk of the Court

BY‘c Mr““ C0 t L731: H567” \ (7202/9001!