Opinion
No. CIV-20-316-F
04-23-2020
CHARLES C. ASHFORD, Petitioner, v. SCOTT CROW, Director, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se, filed this action for a writ of habeas corpus under 28 U.S.C. § 2241. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and the undersigned has undertaken a preliminary review of the sufficiency of the Petition pursuant to Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended the Petition be dismissed.
Rule 4 is applied in the discretion of the undersigned to this 28 U.S.C. § 2241 habeas Petition. Rule 1(b), Rules Governing Section 2254 Cases in the United States District Courts.
I. Background
Although Petitioner does not state the details of his underlying conviction, the undersigned takes judicial notice of the fact that on June 9, 1997, Petitioner was convicted of Sexually Abusing a Minor Child in violation of Okla. Stat. tit. 10, § 7115 and sentenced to life imprisonment. See Oklahoma State Courts Network, District Court of Tulsa County, Case No. CF-1996-5630. By this action, Petitioner does not challenge his conviction nor his sentence. Instead, Petitioner asserts that at the time of his conviction, Oklahoma law construed a life sentence as a sentence for 45 years imprisonment. Doc. No. 1 ("Petition") at 2, 7. He further contends that an alleged subsequent change in the law and/or regulation that no longer construes a life sentence in the same manner constitutes an unlawful ex post facto application to his sentence. Id. at 7. Petitioner argues that because his sentence should be construed as a set term of 45 years imprisonment, he is entitled to the application of earned credits that would further decrease the duration of his sentence. Id. at 8.
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-1996-5630
II. Screening Requirement
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court is required to promptly examine a habeas petition and to summarily dismiss it "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief . . . ." Rule 4, Rules Governing § 2254 Cases. "[B]efore acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions." Day v. McDonough, 547 U.S. 198, 210 (2006). Petitioner has such notice by this Report and Recommendation, and he has an opportunity to present his position by filing an objection to the Report and Recommendation. Further, when raising a dispositive issue sua sponte, the district court must "assure itself that the petitioner is not significantly prejudiced . . . and determine whether the interests of justice would be better served by addressing the merits . . . ." Id. (quotations omitted); Thomas v. Ulibarri, 214 F. App'x 860, 861 n.1 (10th Cir. 2007); Smith v. Dorsey, No. 93-2229, 1994 WL 396069, at *3 (10th Cir. July 29, 1994) (noting no due process concerns with the magistrate judge raising an issue sua sponte where the petitioner could "address the matter by objecting" to the report and recommendation).
III. Analysis
As detailed above, Petitioner's argument is not a challenge to his underlying conviction or his sentence of life imprisonment. Rather, Petitioner challenges what "life imprisonment" means, contending the Oklahoma Department of Corrections ("ODOC") should be ordered to treat his sentence as one for a fixed number of years, specifically 45 years, rather than for the duration of his natural life. Petition at 2, 7, 8. Because Petitioner is challenging the execution of his life sentence, his Petition is properly brought under 28 U.S.C. § 2241. See Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002) (noting that a habeas petition "challenging the execution of [a] sentence rather than the validity of [a] conviction" was properly brought under § 2241).
In reviewing the Petition as well as Petitioner's Brief in Support, see Doc. No. 2, it is clear Petitioner is suffering from certain misconceptions with regard to Oklahoma law and the duration of a life imprisonment sentence. Contrary to Petitioner's assertions, a life sentence in Oklahoma is simply that—a convicted offender is to be detained in ODOC's custody for the remainder of his or her natural life, unless granted parole. See Okla. Stat. tit. 57, § 332.7(A) (setting forth parole consideration criteria for persons in ODOC custody for crimes committed before July 1, 1998); Taylor v. State, 248 P.3d 362, 378 (Okla. Crim. App. 2011) (reiterating that a person sentenced to life imprisonment is not automatically released after a fixed amount of time and further emphasizing that release is never guaranteed or required).
In arguing that at the time of his conviction Oklahoma law construed a life sentence as a set term of 45 years imprisonment, Petitioner relies solely upon Oklahoma Department of Corrections' policy, OP-060103. Petition at 2, 7; Doc. No. 2 at 1-4. With his Brief in Support, he submitted a copy of two pages of OP-060103 that he contends was in effect at the time of his conviction. Doc. No. 2-2. However, OP-060103 is related to classification of an inmate, as reflected on Petitioner's purportedly previous version of the same, see id., and provides guidelines for custody assessment to determine where an offender is confined. The policy is not relevant to good time credits earned for purposes of decreasing the duration of a sentence.
Construing the Petition broadly, see Haines v. Kerner, 404 U.S. 519, 520 (1972), the undersigned interprets Petitioner's claim as also asserting a due process claim, arguing that he has been denied due process with regard to the application of good time credits to his sentence. While Oklahoma state law can create a liberty interest in earned good time credits, see Waldon v. Evans, 861 P.2d 311, 313 (Okla. Crim. App. 1993), Oklahoma law mandates that "[n]o deductions shall be credited to any inmate serving a sentence of life imprisonment . . . ." Okla. Stat. tit. 57, §138(A). While prison officials shall keep "a complete record of the inmate's participation in work, school, vocational training, or other approved program ... for consideration by the paroling authority," said credits are not applied to a life sentence. Id. Thus, Petitioner lacks any right to have prison officials apply earned credits to his life sentence. See, e.g., Burnett v. Leatherwood, 557 F. App'x 739, 742 n.3 (10th Cir. 2014) (noting petitioner's "life sentence precludes the use of [earned] credits to shorten the length of his confinement" under Okla. Stat. tit. 57, § 138(A)).
Petitioner is serving a life sentence for the sexual abuse of a child. See, supra. Therefore, presuming Petitioner has earned good time credits, he is not entitled to use them for early release and accordingly enjoys no liberty interest in them. Gamble v. Evans, 165 F. App'x 698, 700 (10th Cir. 2006).
Notably, the Oklahoma Pardon and Parole Board ("PPB") has used 45 years as its benchmark to calculate when a prisoner is eligible for parole in light of any applicable provision requiring the prisoner to serve a certain portion of his or her sentence. Roy v. State, 152 P.3d 217, 225 n. 28 (Okla. Crim. App. 2006); Anderson v. State, 130 P.3d 273 (Okla. Crim. App. 2006). Pursuant to Okla. Stat. tit. 57, § 332.7(A)(1), Petitioner is entitled for parole consideration after having served 1/3 of his sentence. Because a life sentence is not a term of years from which to deduce one-third of its passage, the PPB uses 45 years as its benchmark to calculate when a prisoner sentenced to life imprisonment is eligible for parole consideration. Landes v. McCollum, No. CIV-14-190-R, 2014 WL 6455483, at *3 (W.D. Okla. Nov. 13, 2014) (citing Roy, 152 P.3d at 225 n.28; Anderson, 130 P.3d at 282).
Thus, contrary to Petitioner's assertion, Oklahoma law does not formally convert life sentences to a number of years at which point an inmate is then entitled to either earned credits or early release but instead, calculates a life sentence as 45 years solely for purposes of determining eligibility for parole consideration. Accordingly, Petitioner's action should be dismissed.
RECOMMENDATION
Based on the foregoing findings, it is recommended this action be dismissed based on Petitioner's failure to state a claim for which relief can be granted. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by May 13th, 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see, cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 23rd day of April, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE