Andrus v. Lambert, 3 Div. 689

CourtAlabama Court of Criminal Appeals
Writing for the CourtBOWEN
Citation424 So.2d 5
Decision Date28 December 1982
Docket Number3 Div. 689
PartiesDebra Ann ANDRUS v. Honorable Ealon LAMBERT, et al.

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424 So.2d 5
Debra Ann ANDRUS
v.
Honorable Ealon LAMBERT, et al.
3 Div. 689.
Court of Criminal Appeals of Alabama.
Dec. 28, 1982.

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Richard Shinbaum, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Richard N. Meadows, Asst. Atty. Gen., for appellees.

BOWEN, Judge.

The plaintiff pled guilty to and was convicted of the second degree murder of Nigel Harlan. The facts of this horrifying murder are reported in the case of her companion. Nolen v. State, 376 So.2d 1145 (Ala.Cr.App.), cert. denied, 376 So.2d 1148 (Ala.1979). Sentence was twenty years' imprisonment. On May 5, 1981, Andrus was interviewed by two members of the Alabama Board of Pardons and Paroles in order to determine whether she should be granted parole in July of 1981. Parole was denied and on August 20, 1981, Andrus filed a complaint in circuit court alleging that the Board improperly denied her parole and requested that the circuit court issue a writ of mandamus or writ of habeas corpus commanding the Board to either reconsider her for parole or place her on parole. The circuit court denied Andrus' prayer for relief. She appealed that denial to the Supreme Court of Alabama, which transferred the cause to this court.

In denying Andrus' prayer for relief, the circuit court issued a written order. This Court fully agrees with and approves of the legal and factual findings of that court. The order is as follows:

"This case is submitted to the Court upon the pleadings, stipulations, memoranda of law and testimony as adduced at trial.... The case seeks relief by mandamus and by habeas corpus.

"The issues presented are as follows: (1) whether the Board of Pardons and Paroles followed the standards mandated by law in denying Plaintiff's parole; (2) whether the denial of Plaintiff's parole was the result of arbitrary and capricious action or an abuse of discretion on the part of the Board of Pardons and Paroles.

"The Plaintiff, an inmate in the State penal system, contends that she was denied parole by the Board due to arbitrary and capricious action on the part of the Board. She seeks a Writ of Habeas Corpus mandating her release from confinement, and alternatively, a Writ of Mandamus ordering the Board to grant her parole.

"Defendants contend that Plaintiff received due and proper consideration for parole and as a result of this consideration the Board, acting within its discretion, denied parole to the Plaintiff. Defendants further contend that the Plaintiff has received all due process rights to which she is entitled under law and that the denial of parole was not arbitrary and capricious.

"The standards to be applied in this case are included in Section 15-22-26, Code of Alabama, 1975, which provides in part:

'No prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned

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in prison, but only if the board of pardons and paroles is of the opinion that there is reasonable probability that, if such prisoner is released he will live and remain at liberty without violating the law and that his release is not incompatible with the welfare of society.'

"Both issues presented may be resolved by reviewing the applicable standards as enumerated in Section 15-22-26, supra, in conjunction with evidence submitted to this Court. As long as these standards are followed by members of the Board of Pardons and Paroles, actions taken by the Board are not arbitrary and capricious or abusive of discretion.

"Alabama's legislative standard for parole action has been recently analyzed by Judge Truman Hobbs, United States District Judge, in the case of Johnson [Johnston ] v. Alabama Pardons and Paroles Board, 530 F.Supp. 589 (M.D.Ala.1982). Judge Hobbs succinctly states:

'The issue of an inmate's entitlement to the constitutional protections of due process in regard to consideration for parole was addressed by the United States Supreme Court in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1 [99 S.Ct. 2100, 60 L.Ed.2d 668] (1979). The Supreme Court in Greenholtz held that a statutory provision that holds out the mere possibility of parole does not create a liberty interest entitled to the protection of due process. Id. at 11 [99 S.Ct. at 2105-2106]. In that case, however, the Supreme Court found that the unique structure and language of the Nebraska parole statute provided an expectation of parole sufficient to create a liberty interest entitled to constitutional protection. Id. at 12 [99 S.Ct. at 2106]. Since the Supreme Court emphasized the unique structure and language of the Nebraska statute and the need for a case by case analysis of whether other state parole statutes provide a protectible entitlement, the task now before the Court is to compare the features of the Nebraska statute with those of its Alabama counterpart.

'The Nebraska parole statute requires that the Board of Parole order an eligible prisoner's release unless it finds one of four specific reasons to deny release. Section 83-1,114(1) of the Nebraska Revised Statutes provides:

'Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:

"(a) There is...

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12 practice notes
  • Ellard v. State, 3 Div. 927
    • United States
    • Alabama Court of Criminal Appeals
    • June 26, 1984
    ...interest" entitled to protection under the due process clause of either the United States or Alabama constitutions. Andrus v. Lambert, 424 So.2d 5 (Ala.Crim.App.1982); Thomas v. Sellers supra; Johnston v. Alabama Pardon and Parole Board, 530 F.Supp. 589 The right to a parole is a privilege ......
  • Bostwick v. ALA. BD. OF PARDONS AND PAROLES
    • United States
    • Alabama Court of Criminal Appeals
    • March 21, 2003
    ...have "exclusive appellate jurisdiction of ... all postconviction writs in criminal cases." "As this court stated in Andrus v. Lambert, 424 So.2d 5, 9 (Ala.Cr.App. "`The right to a parole is a privilege granted by the people of Alabama to those committed to our penal institutions as punishme......
  • Tucker v. Ala. Bd. of Pardons & Paroles, CR–14–0720.
    • United States
    • Alabama Court of Criminal Appeals
    • August 14, 2015
    ...parole." Alabama Bd. of Pardons & Paroles v. Wright, 37 So.3d 842, 843 (Ala.Crim.App.2009). As this court explained in Andrus v. Lambert, 424 So.2d 5 (Ala.Crim.App.1982) :"The right to a parole is a privilege granted by the people of Alabama to those committed to our penal institutions as p......
  • Strong v. ALA. BD. OF PARDONS & PAROLES
    • United States
    • Alabama Court of Criminal Appeals
    • November 30, 2001
    ...parole. Neither the circuit court's order nor Parker's motion to dismiss addresses this claim. "As this court stated in Andrus v. Lambert, 424 So.2d 5, 9 (Ala.Cr.App. "`The right to a parole is a privilege granted by the people of Alabama to those committed to our penal institutions as puni......
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12 cases
  • Ellard v. State, 3 Div. 927
    • United States
    • Alabama Court of Criminal Appeals
    • June 26, 1984
    ...interest" entitled to protection under the due process clause of either the United States or Alabama constitutions. Andrus v. Lambert, 424 So.2d 5 (Ala.Crim.App.1982); Thomas v. Sellers supra; Johnston v. Alabama Pardon and Parole Board, 530 F.Supp. 589 The right to a parole is a privilege ......
  • Bostwick v. ALA. BD. OF PARDONS AND PAROLES
    • United States
    • Alabama Court of Criminal Appeals
    • March 21, 2003
    ...have "exclusive appellate jurisdiction of ... all postconviction writs in criminal cases." "As this court stated in Andrus v. Lambert, 424 So.2d 5, 9 (Ala.Cr.App. "`The right to a parole is a privilege granted by the people of Alabama to those committed to our penal institutions as punishme......
  • Tucker v. Ala. Bd. of Pardons & Paroles, CR–14–0720.
    • United States
    • Alabama Court of Criminal Appeals
    • August 14, 2015
    ...parole." Alabama Bd. of Pardons & Paroles v. Wright, 37 So.3d 842, 843 (Ala.Crim.App.2009). As this court explained in Andrus v. Lambert, 424 So.2d 5 (Ala.Crim.App.1982) :"The right to a parole is a privilege granted by the people of Alabama to those committed to our penal institutions as p......
  • Strong v. ALA. BD. OF PARDONS & PAROLES
    • United States
    • Alabama Court of Criminal Appeals
    • November 30, 2001
    ...parole. Neither the circuit court's order nor Parker's motion to dismiss addresses this claim. "As this court stated in Andrus v. Lambert, 424 So.2d 5, 9 (Ala.Cr.App. "`The right to a parole is a privilege granted by the people of Alabama to those committed to our penal institutions as puni......
  • Request a trial to view additional results

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