Shirley v. Chestnut

• Decision Date: 10 August 1979
• Docket Number: No. 78-1524,78-1524
• Citation: 603 F.2d 805
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: CA 79-3019 Elden Duane SHIRLEY, Jr., Bernard F. Ellis, Ronald D. Barnette, Marvin O. Smith, Jerry Glen Miller, Robert Earl Jackson, Gerald Pate, Lewis Altman, Frederick D. Bray, Emmett Ray Daniels, Karl Dillar, Jr., Dewey L. Hurd, Fred A. Jones, Marcus Jackson, Billy R. Langkeit, Billy E. Manley, Jarvis Mitchell, John Wayne Parsons, Billy Roberts and Paul Gene Crawford, Plaintiffs-Appellants, v. Charles C. CHESTNUT, Littleton Fowler, H. D. Binns, Jr., Lillian Russell and Robert Copeland, Individually and in their capacities members of the Pardon& Parole Board of the State of Oklahoma, and Governor David Boren, Individually and in his capacity as Governor of the State of Oklahoma, and Cynthia Myerson, Defendants-Appellees.

Page 805

603 F.2d 805

CA 79-3019 Elden Duane SHIRLEY, Jr., Bernard F. Ellis,

Ronald D. Barnette, Marvin O. Smith, Jerry Glen Miller,

Robert Earl Jackson, Gerald Pate, Lewis Altman, Frederick D.

Bray, Emmett Ray Daniels, Karl Dillar, Jr., Dewey L. Hurd,

Fred A. Jones, Marcus Jackson, Billy R. Langkeit, Billy E.

Manley, Jarvis Mitchell, John Wayne Parsons, Billy Roberts and Paul Gene Crawford, Plaintiffs-Appellants, v. Charles C. CHESTNUT, Littleton Fowler, H. D. Binns, Jr., Lillian Russell and Robert Copeland, Individually and in their capacities members of the Pardon& Parole Board of the

State of Oklahoma, and Governor David Boren, Individually

and in his capacity as Governor of the State of Oklahoma,

and Cynthia Myerson, Defendants-Appellees.

No. 78-1524.

United States Court of Appeals, Tenth Circuit.

Submitted July 23, 1979.

Decided Aug. 10, 1979.

David C. Hood and Jim Ikard, of Courbois, Chew, Ikard & Hood, Mark S. Schwartz, Mary E. Bane, Oklahoma City, Okl., and Louis W. Bullock, Tulsa, Okl., for plaintiffs-appellants.

Larry Derryberry, State's Atty. Gen., Joe H. Enos, and Harold B. McMillan, Asst. State's Attys. Gen., Oklahoma City, Okl., for defendants-appellees.

Before SETH, Chief Judge, BARRETT and LOGAN, Circuit Judges.

PER CURIAM.

Appellants, inmates of various Oklahoma State Penal Institutions, filed an action in the United States District Court for the Western District of Oklahoma in which they sought declaratory and injunctive relief in connection with denial of parole release. Specifically, appellants sought a declaration that the Due Process Clause of the Fourteenth Amendment requires published criteria for parole release, access to adverse material in inmate files, right to subpoena witnesses at the hearing, and written reasons for the denial of parole.

In Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, --- U.S. ----, ----, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the United States Supreme Court rejected the claim that a reasonable entitlement to due process is created whenever a state provides for the possibility of parole. Instead, the Court looked to Nebraska law to determine whether a liberty interest protectible by due process had been created. The Supreme Court particularly noted that the Nebraska statutes provide that the Board of Parole "shall" release an inmate unless one of four designated reasons are found. In addition, fourteen statutory factors are required to be considered by the Board in reaching the parole decision. On this basis, the Supreme Court found that the Nebraska statutory scheme was sufficient to entitle an inmate to some measure of constitutional protection in connection with parole release.

Nonetheless, the Supreme Court stated in Greenholtz at ----, 99 S.Ct. at 2106:

"However, we emphasize that this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis."

Thus, in the present case, the Oklahoma statutes must be examined to determine whether a liberty interest has been created thereby. Basically, Oklahoma has a three-tier system for parole release. The Correctional Review Committee compiles the Pardon and Parole Board's monthly docket scheduling inmates for parole consideration. Pursuant to the Forgotten Man Act, 57 Okl.Stat.Ann. § 332.7 (1971), every inmate must be considered for parole on or before the expiration of one-third of his maximum sentence. In addition, any inmate serving 45 years or more, including a life sentence, shall be considered for parole or clemency after serving 15 years. See Rules of the Board, 57 Okl.Stat.Ann., Chap. 7, App. (Supp.1977).

An inmate may be placed on the docket for consideration of parole by recommendation of the Correctional Review Committee or by any member of the Board. Any inmate who is rejected for docketing is afforded the opportunity to appear in person before the CRC. All inmates considered and denied docketing by the CRC or by the Parole Board are to be reconsidered by the CRC no later than twelve months subsequent to their last review.

Pursuant to 57 Okl.Stat.Ann. § 332.2, § 354 (1971), the Board is authorized to examine into the merits of applications for parole and make recommendations to the Governor as, in its discretion, the public interest requires, said recommendations being advisory to the Governor and not binding. According to the Board rules, inmates are entitled to a hearing before the Board. The Board does not object to lawyers or any other person appearing personally before the Board and the inmate may present evidence in documentary form. 57 Okl.Stat.Ann., Chap. 7, App. (Supp.1977).

It is stipulated that there are no written criteria for parole release to guide the Parole Board members in their determinations. Chairman Chestnut stated in his deposition that the Board members use their own good judgment....