Bostwick v. ALA. BD. OF PARDONS AND PAROLES

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: COBB.
• Citation: 865 So.2d 1245
• Parties: Geoffrey Richard BOSTWICK v. ALABAMA BOARD OF PARDONS AND PAROLES.
• Decision Date: 21 March 2003

865 So.2d 1245

Geoffrey Richard BOSTWICK
v.
ALABAMA BOARD OF PARDONS AND PAROLES

CR-01-2238.

Court of Criminal Appeals of Alabama.

March 21, 2003.

Rehearing Denied May 23, 2003.

865 So.2d 1246

Geoffrey Richard Bostwick, pro se

Gregory O. Griffin, Sr., chief counsel, and Hugh Davis, Francis A. Long, Sr., and Steven M. Sirmon, asst. attys. gen., Alabama Board of Pardons and Paroles.

COBB, Judge.¹

Geoffrey Richard Bostwick is currently serving a 20-year sentence for a 1987 murder conviction. On January 7, 2002, the Alabama Board of Pardons and Paroles ("the Board") considered him for parole, but voted to deny Bostwick parole and not to schedule him for further parole eligibility consideration.

On January 31, 2002, Bostwick filed a petition for a writ of certiorari in the Montgomery Circuit Court. After the Board responded, the circuit court summarily dismissed the petition on June 11, 2002, in a detailed order. This appeal followed.

Bostwick claimed in his petition and reiterates on appeal that the Board "may" have relied on erroneous information in his file in denying him parole. The circuit court noted in its order that "[t]his claim made by [Bostwick] is merely speculative and unsupported by any evidence provided to this Court." (C. 65.)

"In the absence of the right to appeal or other adequate remedy, the writ of certiorari lies to review the rulings of an administrative board or commission." Ellard v. State, 474 So.2d 743, 748 (Ala.Crim. App.1984). Section 12-3-9, Ala.Code 1975, states that the Court of Criminal Appeals shall 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. 1982):

"`The right to a parole is a privilege granted by the people of Alabama to those committed to our penal institutions as punishment for crimes. Holley v. State, 397 So.2d 211, 216 (Ala.Crim.App.), cert. denied, 397 So.2d 217 (Ala.1981). Obtaining an early release through parole, like obtaining a pardon, is wholly contingent upon either the grace of the detaining authority or some affirmative statutory entitlement. United States v. Chagra, 669 F.2d 241, 264 (5th Cir. 1982). While no constitutional or inherent right of a convicted person to be conditionally released prior to the expiration of a valid sentence exists, Greenholtz v. Nebraska, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979), a prisoner has the right to be properly considered for parole. Christopher v. U.S. Board of Parole, 589 F.2d 924 (7th Cir.1978); Wallace v. Turner, 525 F.Supp. 1072 (S.D.Fla. 1981). The paroling authority must comply with constitutional requirements and may not determine parole eligibility on improper grounds. Wallace v. Turner, supra. A parole should not be denied for false, insufficient, or capricious reasons. Christopher, supra.'

"Although no due process guarantees apply to the granting or denying of parole, parole should not be denied for `capricious reasons.'"

Tedder v. Alabama Bd. of Pardons & Paroles, 677 So.2d 1261, 1263-64 (Ala.Crim. App.1996). See also Strong v. Alabama Bd. of Pardons & Paroles, 859 So.2d 1201

865 So.2d 1247

(Ala.Crim.App.2001), and Tucker v. Alabama Bd. of Pardons & Paroles, 781 So.2d 358 (Ala.Crim.App.2000). Therefore, although the Board has nearly unfettered discretion in granting or denying parole, sufficiently pleaded claims that the Board has relied upon false information in its decision-making process are proper subject matter for petitions for a writ of certiorari filed in the Montgomery Circuit Court and appealed to this Court

In Strong, the petitioner alleged that, in denying him parole, the Board had relied on information in his file that indicated that, while in prison, Strong had been convicted of escape. The petitioner attached an affidavit to his certiorari petition stating that a friend who had been present at the parole hearing told him that the Board "made reference to the escapes when it denied Strong's parole." Strong, 859 So.2d at 1204. Neither the circuit court nor the Board addressed the petitioner's claim. This Court remanded the cause for the circuit court to order the Board to respond to the allegation and, considering the Board's response, to decide the merits of Strong's allegation.

Unlike Strong, in this case, as the circuit court noted, the petitioner's claim is mere speculation in that he has not supported his claim with any evidence. Therefore, we affirm the circuit court's summary dismissal of the petition.

AFFIRMED.

McMILLAN, P.J., and SHAW, J., concur; BASCHAB, J., concurs specially, with opinion; WISE, J., concurs in the result.

BASCHAB, Judge, concurring specially.

Because the majority appears to follow the current state of the law, I am forced to concur in the result. However, I also concur specially to urge a change in the law.

The Board argues that "[t]here is no legal basis for a prisoner to seek judicial review of the Board's decision not to parole him." (Board's brief at p. 28.) Specifically, it contends that "[t]he Alabama Legislature has given the Board of Pardons and Paroles discretionary authority to decide what prisoners may be paroled, and when, and under what conditions." (Board's brief at pp. 27-28.) Therefore, it concludes that "the decision to deny parole is not reviewable." (Board's brief at p. 25.) For the reasons set forth below, I agree that such a decision is not reviewable in a state court.

Section 15-22-24(a), Ala.Code 1975, provides, in pertinent part:

"The Board of Pardons and Paroles, hereinafter referred to as `the board,' shall be charged with the duty of determining what prisoners serving sentences in the jails and prisons of the State of Alabama may be released on parole and when and under what conditions."

Section 15-22-26, Ala.Code 1975, provides, in pertinent part:

"No prisoner shall be released on parole merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the Board of Pardons and Paroles is of the opinion that there is a reasonable probability that, if such prisoner is released, he will

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