Opinion
C. A. 9:21-cv-00631-TMC-MHC
09-17-2021
Thomas Thompson, #80681, Petitioner, v. Warden of Tyger River Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Pro se Petitioner Thomas Thompson (“Petitioner”), a state inmate at the Tyger River Correctional Institution of the South Carolina Department of Corrections, petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”) challenging his denial of parole. Respondent Warden (“Respondent”) filed a Motion for Summary Judgment, ECF No. 13, and Petitioner filed a Response in Opposition, ECF No. 16. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this matter was referred to the undersigned for a Report and Recommendation.
Despite the Petition purportedly being brought under § 2241, the Court construes the Petition as being brought pursuant to 28 U.S.C. § 2254, for the reasons stated below.
I. BACKGROUND
On December 11, 1975, Petitioner pled guilty to the offense of murder. ECF No. 13-1. He was sentenced to a period of incarceration for the remainder of his natural life. At the time Petitioner committed this offense, South Carolina law provided that a person serving a life sentence for murder was eligible for parole upon the service of ten years' imprisonment. Petitioner made his initial appearance before the Parole Board in 1985 and has since appeared an additional nineteen times. See ECF No. 1-2 at 2; ECF No. 13 at 2 n.1. All appearances have resulted in a denial of parole.
Relevant to this action, on January 31, 2018, Petitioner appeared before the Parole Board. The Board denied parole, stating, in pertinent part:
After careful consideration of: (1) the characteristics of your current offense(s), prior offense(s), prior supervision history, prison disciplinary record, and/or prior criminal record, as described in the findings of fact below; (2) the factors published in Department Form 1212 (Criteria for Parole Consideration); (3) the factors outlined in Section 24-21-640 of the South Carolina Code of Laws, and (4) actuarial risk and needs assessment factors pursuant to Section 24-21-10 (F) (1) of the South Carolina Code of Laws. The Parole Board had determined that your parole must be denied.ECF No. 1-2 at 1.
The findings of fact the Board found and considered were the “Nature and Seriousness of Current Offense, ” “Indication of Violence in This Or Previous Offense, ” and “Use of Deadly Weapon In This or Previous Offense.” ECF No. 1-2 at 1.
Petitioner appealed the parole denial to the South Carolina Administrative Law Court (SCALC). On August 6, 2019, the SCALC issued a decision dismissing the appeal. ECF No. 1-2 at 2-5. Petitioner appealed to the South Carolina Court of Appeals, and, on May 27, 2020, the Court of Appeals filed a decision affirming the decision of the SCALC. ECF No. 1-2 at 6-7. The petition for rehearing was denied on August 31, 2020. ECF No. 1-2 at 8. The Supreme Court of South Carolina later denied certiorari on October 15, 2020. ECF No. 13-2 at 1-2.
Petitioner initiated this action on March 5, 2021. ECF No. 1. Petitioner argues that the Parole Board violated his Fourteenth Amendment right to equal protection under the law, claiming that similarly situated inmates have received parole while he has not. Specifically, Petitioner claims that his equal protection rights were violated because approximately 400 inmates serving a life sentence for murder with ten-year parole eligibility have been paroled after an average of twelve years' imprisonment. ECF No. 1 at 2.
II. LEGAL STANDARDS
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
B. Habeas Corpus
a. The Petition is properly construed as a § 2254 Petition.
Under established local procedure in this judicial district, a careful review has been made of this Petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
Although the Petition is brought under § 2241, “federal habeas petitions of prisoners who are ‘in custody pursuant to the judgment of a State court' should be treated as ‘applications under section 2254,' . . . even if they challenge the execution of a state sentence.” In re Wright, 826 F.3d 774, 778-83 & n.5 (4th Cir. 2016) (siding with the majority of the appellate circuits over whether such petitions are governed by § 2254 or § 2241 and holding “the more specific § 2254 ‘and all associated statutory requirements' shall apply, regardless of the statutory label the prisoner chooses to give his petition” (citation omitted)). Further, the Fourth Circuit held in In re Wright that the type of petitions like the instant Petition are subject to the successive authorization requirement set forth in § 2244(b)(3). Id. at 779. Thus, the instant Petition is properly characterized as being brought under § 2254. See, e.g., Goss v. Cohen, No. CV 4:19-111-MGL-TER, 2019 WL 2127067, at *2 (D.S.C. Feb. 6, 2019) (“Petitioner's Petition, although styled as a § 2241 Petition, is governed by § 2254 and all its associated statutory requirements.”), report and recommendation adopted, No. CV 4:19-00111-MGL, 2019 WL 1034036 (D.S.C. Mar. 5, 2019); Hao Qing Zhan v. Wilson, No. 8:12-CV-03052-RBH, 2013 WL 4500055, at *5 (D.S.C. Aug 19, 2013) (considering a state prisoner's challenge to parole eligibility under § 2254 instead of § 2241).
b. Federal Habeas Review under 28 U.S.C. § 2254
As the Petition is properly construed as one under § 2254, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under § 2254(d),
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the State court proceeding.28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, ” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”). A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).
Because “review under § 2254(d)(1) focuses on what a state court knew and did, ” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[;] [thus, ] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).
Accordingly, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 410. Further, factual findings “made by a State court shall be presumed to be correct, ” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
III. DISCUSSION
A. Exhaustion
As an initial matter, because the Petition is properly construed as one under § 2254, the exhaustion of state remedies is required prior to initiation of a federal habeas corpus petition unless it is waived by the state. See 28 U.S.C. § 2254; Preiser v. Rodriguez, 411 U.S. 475, 477 (1973). Under the procedure established by the Supreme Court of South Carolina in Al-Shabazz v. State, inmates challenging “non-collateral and administrative matters” must proceed through the South Carolina Department of Corrections' grievance procedures, then seek review with the SCALC. Al-Shabazz v. State, 527 S.E.2d 742, 754-55 (S.C. 2000). Review of parole decisions is through the SCALC. James v. S.C. Dept. of Prob., Parole and Pardon Servs., 656 S.E.2d 399, 400-03 (S.C. Ct. App. 2008). To obtain judicial review of the SCALC's final decision, the inmate may file an appeal with the South Carolina Court of Appeals and then with the Supreme Court of South Carolina. S.C. Code Ann. § 1-23-610; Rule 242, SCACR.
As noted above, Petitioner appealed the parole denial all the way to the Supreme Court of South Carolina. See ECF No. 13-2 at 1-2. Accordingly, Petitioner has exhausted his state remedies, and the Court may entertain the Petition.
B. Merits
Petitioner argues that the Parole Board violated the Equal Protection clause of the Fourteenth Amendment. Specifically, Petitioner claims that his equal protection rights were violated because approximately 400 inmates serving a life sentence for murder with ten-year parole eligibility have been paroled after an average of twelve years' imprisonment. ECF No. 1 at 2. He appears to argue that the Parole Board has improperly denied him parole on the basis of his crime of murder, while the Board has set aside or “looked past” the crime of murder for other inmates who have received parole. He argues that this is clear evidence of disparate treatment. Furthermore, in his Response, Petitioner specifically states that he is not questioning the Parole Board's authority to grant parole, nor “has he claimed a Constitutional right to or liberty interest in parole.” ECF No. 16 at 1. For the reasons that follow, the undersigned recommends granting Respondent's Motion for Summary Judgment.
a. Petitioner has not stated an Equal Protection claim
The Equal Protection Clause generally requires the government to treat similarly situated people alike. City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). To establish an equal protection claim, an inmate “must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (citation and internal quotation marks omitted). He must next show that the policy is not “reasonably related to [any] legitimate penological interests.” Id. at 732 (quoting Shaw v. Murphy, 532 U.S. 223, 225 (2001)).
Petitioner does not state facts supporting these elements. Aside from generally alleging his right to equal protection was denied, the Petition fails to specify how similarly situated inmates were treated differently from Petitioner, other than to state that other inmates convicted of murder have been released on parole while Petitioner has not. This general allegation-that the Parole Board “looked past” the crime of murder in other inmate's parole hearings-ignores what a Parole Board considers for each inmate it reviews. Indeed, in Petitioner's case, the Parole Board stated it considered the factors published in Department Form 1212 (Criteria for Parole Consideration) and the factors outlined in §§ 24-21-640 and 24-21-10(F)(1) of the South Carolina Code. ECF No. 1-2 at 1. The Parole Board also indicated that it had considered the nature and seriousness, indication of violence, and use of a deadly weapon in Petitioner's offense. ECF No. 1-2 at 1. There is no showing, or even an allegation, that Petitioner's parole proceedings were different from other inmates or somehow not conducted according to the proper statutory considerations. Consequently, Petitioner's Equal Protection claim fails. See Vann v. Angelone, 73 F.3d 519, 522 (4th Cir. 1996) (noting “federal courts must defer to state agencies applying state laws and thus their oversight of state parole proceedings has been extremely limited”).
b. To the extent Petitioner may be attempting to assert due process violations, such claims fail
Though Petitioner states he is alleging a violation of his equal protection rights under the Fourteenth Amendment, construing the Petition liberally, as this Court must, Petitioner may be attempting to allege violations of his due process rights under the Fourteenth Amendment. Out of an abundance of caution, the Court addresses this claim, to the extent it may have been raised.
As Petitioner recognized in his Response, ECF No. 16 at 1, the Constitution does not create a protected liberty interest in the expectation of early release on parole. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979); see also Jago v. Van Curen, 454 U.S. 14, 17-20 (1981) (holding that a mutually explicit understanding that an inmate would be paroled does not create liberty interest). “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz, 442 U.S. at 7. “It is therefore axiomatic that because . . . prisoners have no protected liberty interest in parole they cannot mount a challenge against a state parole review procedure on procedural (or substantive) Due Process grounds.” Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997). Because there is no constitutional right, federal courts “recognize due process rights in an inmate only where the state has created a ‘legitimate claim of entitlement' to some aspect of parole.” Vann, 73 F.3d at 522 (citation omitted).
The Supreme Court of South Carolina has held that the permanent denial of parole eligibility implicates a liberty interest sufficient to require at least minimal due process. Furtick v. S.C. Dep't of Prob., Parole & Pardon Servs., 576 S.E.2d 146, 149 (S.C. 2003). In reaching this conclusion, that court emphasized the finality of the South Carolina Department of Probation, Parole, and Pardon Service's decision, and distinguished the final determination of parole eligibility from the temporary granting or denial of parole to an eligible inmate. Id. at n.4. Although the Supreme Court of South Carolina found S.C. Code § 24-21-620 created a liberty interest in the one-time determination of parole eligibility, “it was quick to note that the statute did not create a liberty interest in parole.” Sullivan v. S.C. Dep't of Corr., 586 S.E.2d 124, 127 (S.C. 2003). Later, in Cooper v. S.C. Dep't of Prob., Parole, and Pardon Servs., the Supreme Court of South Carolina held that the Parole Board's failure to consider all of the factors set forth in § 24-21-640 of the South Carolina Code was arbitrary under the due-process clause. See Cooper v. S.C. Dep't of Prob., Parole, and Pardon Servs., 661 S.E.2d 106, 111-12 (S.C. 2008) (noting “the Parole Board may avoid the result in the instant case if it clearly states in its order denying parole that it considered the factors outlined in section 24-21-640 and the fifteen factors published in its parole form”).
Here, Petitioner has failed to state a cause of action for relief because parole eligible inmates have no protected right to parole, only the right to a parole hearing-which the petitioner has had nineteen times. See Furtick, 576 S.E.2d at 149; Sullivan, 586 S.E.2d at 127 n.4. Moreover, in compliance with the Cooper mandate, the Parole Board's decision denying Petitioner's parole specifically indicated that the Parole Board had carefully considered the factors published in Department Form 1212 (Criteria for Parole Consideration) and the factors outlined in §§ 24-21-640 and 24-21-10(F)(1) of the South Carolina Code. ECF No. 1-2 at 1. Consequently, the SCALC's dismissal of the matter, see ECF No. 1-2 at 2-5, and the South Carolina Court of Appeals' affirmance of the SCALC's decision, see ECF No. 1-2 at 6-7, was lawful under Cooper. Accordingly, the undersigned recommends a finding that Petitioner is not being held unlawfully because the Parole Board did not deviate from the statutory criteria when considering his request for parole based on the evidence in the record. Thus, to the extent it was raised, Petitioner has failed to show any due process violation with respect to his parole proceedings or that he was somehow deprived of a liberty interest in connection with his denial of parole.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 13) be GRANTED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).