Heath v. Norwood

• Decision Date: 05 September 2018
• Docket Number: Case No. 17-3114-DDC
• Citation: 325 F.Supp.3d 1183
• Parties: Glenn A. HEATH, Petitioner, v. Joe NORWOOD, Secretary of Corrections, et al., Respondents.
• Court: U.S. District Court — District of Kansas

325 F.Supp.3d 1183

Glenn A. HEATH, Petitioner,

v.Joe NORWOOD, Secretary of Corrections, et al., Respondents.

Case No. 17-3114-DDC

United States District Court, D. Kansas.

Signed September 5, 2018

Glenn A. Heath, Lansing, KS, pro se.

Kristafer R. Ailslieger, Office of Attorney General, Topeka, KS, for Respondents.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

This matter comes before the court on Glenn A. Heath's pro se¹ Petition for Writ of Habeas Relief (Doc. 1), respondents' Answer and Return (Doc. 16), and petitioner's Traverse (Doc. 19). Generally, petitioner attacks respondent the Kansas Prison Review Board's decision to deny petitioner parole on three grounds: lack of due process, lack of equal protection, and violation of his First Amendment rights. For reasons explained below, the court denies the Petition.

I. Facts

The Kansas Court of Appeals summarized the facts of petitioner's state-court case this way:

[Petitioner] is an inmate at the Lansing Correctional Facility. On June 28, 1996, [petitioner] was sentenced to life imprisonment for committing first-degree felony murder and to 68 months for committing abuse of a child. The facts of [petitioner's] 1996 convictions [are] as follows:

On the morning of October 21, 1995, [petitioner] was caring for Cain Baker, the 2-year-old son of [petitioner's] live-in girlfriend. Because the child was vomiting, [petitioner] called 911. Emergency personnel responded and transported the child to the hospital. The doctors there soon realized that Cain was not just ill; he was badly injured and bleeding internally. The police almost immediately suspected that [petitioner] had inflicted Cain's injuries. The police arrested [petitioner] later that same day. He has been in custody continuously since October 21, 1995. On October 23, 1995, Cain died as the result of internal bleeding caused by blunt force trauma to his abdomen. [A surgeon who operated on Cain described the injury as comparable to falling from a two-story building onto a chair leg].

The State charged [petitioner] with first-degree felony murder, an off-grid offense, and a count of felony child abuse. At trial in 1996, the jury found [petitioner] guilty on each count. The district court sentenced [petitioner] to life in prison on the felony-murder count. The district court found that the aggravating circumstances of the felony child abuse offense (Cain was particularly vulnerable due to age and [petitioner's] conduct during the commission of the offense manifested excessive brutality to the victim not normally present in child abuse) were substantial and compelling reasons to depart upward on sentence duration. On that count, the district court imposed a sentence of 68 months to run consecutively to [petitioner's] life sentence. On appeal, the Supreme Court affirmed the felony-murder conviction and sentence. However, the Supreme Court reversed [petitioner's] conviction for child abuse and vacated that sentence. Because only one act formed the basis for both the child abuse and the murder convictions, double jeopardy principles required that the offenses be merged into the felony murder.

[Petitioner] became eligible for parole on October 21, 2010. In April 2011, he appeared before the Kansas Parole Board (now the Kansas Prisoner Review Board) and was denied parole. The Parole Board cited the serious nature/circumstances of the crime; violent nature of the crime; and objections as reasons for denying parole.

[Petitioner] challenged the denial of parole on [ Kan. Stat. Ann. §] 60-1501 habeas corpus grounds, claiming the denial of parole violated his due process rights under the Fourteenth Amendment of the United States Constitution. Specifically, he alleged the Parole Board acted in an arbitrary and capricious manner by using vague stock language in the Action Notice denying parole. [Petitioner] also alleged that the Parole Board should not have considered the facts of his overturned child abuse conviction, and he disputed the finding that he was not behaviorally disposed for parole. Ultimately, a panel of this court affirmed the district court's dismissal of his habeas corpus petition and agreed the Parole Board did not act beyond its discretion or on an inaccurate record.

On or before August 6, 2015, [petitioner] filed an apology letter with the Apology Repository in the Kansas Department of Corrections. At some point, [petitioner] also submitted a letter to the Kansas Prisoner Review Board, explaining his position on the convictions. In that letter, he claimed that his conviction for murder was improper and unsupported by the facts. Nevertheless, [petitioner] acknowledged that he had failed to protect the child and stated that he accepted the judgment whether or not it is correct, right, and fair or just. On August 21, 2015, the Review Board held a public comment session regarding the question of whether it should parole [petitioner]. Multiple people objected to his parole and requested that [petitioner] remain in prison.

On September 2, 2015, [petitioner] appeared before the Review Board. At the hearing, [petitioner] indicated that he lied to police initially about the events leading to the child's injuries; however, when asked by the Review Board about the time before the crime, he denied intentionally abusing or injuring the child. He further suggested that the evidence regarding the cause of the child's injuries was inconclusive. [Petitioner] denied responsibility and instead told the Review Board that he thought the child was injured at a neighborhood park.

The Review Board noted [petitioner] had no disciplinary violations during his incarceration. Moreover, [petitioner] described various personal advancements he had made while in prison. In particular, he mentioned that he and his wife purchased a home, that he had a job lined up should he be released, and that he had "used every opportunity to progress" while in prison.

On October 14, 2015, the Review Board denied [petitioner's] request for parole. In doing so, it cited the serious nature and circumstances of [petitioner's] crime; his denial of responsibility for injuring the child; and the objections received from the public. Thereafter, [petitioner] filed a pro se [ Kan. Stat. Ann. §] 60-1501 petition and memorandum in support in the district court. On November 16, 2015, the district court issued a writ of habeas corpus and set the matter for hearing. Subsequently, the State filed a response and motion to dismiss for failure to state a claim. The State argued that the Review Board had followed all statutory requirements and that its decision to deny parole was not arbitrary or capricious. In response, [petitioner] argued there was insufficient evidence to support finding him guilty of felony murder. Among other arguments, he also indicated that his clean record in prison and his pursuit and completion of self-help courses demonstrated his ability to return to society successfully.

The district court held a hearing on February 16, 2016. After hearing the arguments presented, the district court granted the State's motion to dismiss. Specifically, the district court focused on the ability of the Review Board to consider the facts of the conviction in determining the nature of the crime. The district court further noted the inability of a reviewing court to substitute its judgement for that of the Review Board and found that the Review Board had adequately followed the statutory requirements.

Heath v. Roberts , ––– Kan.App.2d ––––, 386 P.3d 926, 2016 WL 7324457, at *1–2 (Kan. Ct. App. Dec. 16, 2016) (unpublished table decision) (internal citations, alterations, and quotation marks omitted).

Petitioner timely appealed the Kansas state district court's decision to the Kansas Court of Appeals. Id. at *2. In his appeal, petitioner raised a variety of issues. They included the due process, equal protection, and First Amendment issues he raises here. In the end, the Kansas Court of Appeals affirmed the district court's decision. Id. at *4. On April 26, 2017, the Kansas Supreme Court denied review. From the date the Review Board denied petitioner parole, he has served 21 years in prison.

Petitioner is not the only person convicted of felony-murder for the death of a child whose parole status the Review Board considered recently. The Review Board recently granted two other inmates—Vincent Altum and Kelly Williams—parole. Mr. Altum was convicted of killing his girlfriend's 14-month old son after he struck the child multiple times in the head and shook him. Mr. Williams was convicted of killing his girlfriend's three-year old daughter after violently shaking her and beating her. Both inmates had disciplinary actions taken against them during their time in prison. The Review Board released Mr. Altum on parole after he served 18 years. Mr. Williams served 19 years before the Review Board granted him parole. The Review Board also has released a prisoner who, like petitioner, maintains that he is innocent of the crime for which he was convicted. In particular, Mr. Craig Wilson was convicted of sodomizing a child.² While the court is not certain how long Mr. Wilson spent in prison, he has served more time than petitioner.³

Three months after the Kansas Supreme Court denied review of the Kansas Court of Appeals decision, petitioner filed a writ of habeas corpus with our court. While his filings are difficult to follow at times, the Petition alleges three grounds for support. First, it argues that the Review Board⁴ violated petitioner's due process and equal protection rights. Second, it contends that petitioner has a contractual right to parole under Kan. Stat. Ann. §§ 75-5201, et seq. and 22-3717(g)(2) and (h). And thus, it contends, the Review Board must support its decision with evidence. Failure to do so, it argues, amounts to a due process violation. Third, petitioner argues that the Review Board's actions were arbitrary and capricious. He also raises a ...