Lamb v. Biggs
| Decision Date | 06 July 2012 |
| Docket Number | CASE NO. 10-3195-SAC |
| Parties | THOMAS LAMB, Petitioner, v. PATRICIA BIGGS, et al., Respondents. |
| Court | U.S. District Court — District of Kansas |
THOMAS LAMB, Petitioner,
v.
PATRICIA BIGGS, et al., Respondents.
CASE NO. 10-3195-SAC
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
Dated: July 6, 2012
This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2241.1 Mr. Lamb generally complains of the Kansas Parole Board's (KPB) denial of his application(s) for parole since he became eligible in 1984. However, as Ground 1, he alleges that the KPB's decision on March 9, 2010, to pass his case for 5 years and 7 months was "retaliation" for his participation in political process as to the KPB. As Ground 2, he asserts that the KPB's action on his application for parole was contrary to "Priest v. McKune" and therefore arbitrary and capricious. As Ground 3, he claims that he has a liberty interest created by K.S.A. § 22-3717(j) not to be passed for more than 3 years, which was violated. As Ground 4, he asserts that he is being denied equal protection of the law in that other "similarly situated" inmates have been granted parole.
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Mr. Lamb generally seeks "the relief to which he may be entitled."
PROCEDURAL HISTORY
Respondents have filed an Answer and Return together with some state court records from petitioner's criminal case and his state habeas petition that challenged the 2004 denial of his application for parole. Petitioner has provided a copy of the state petition that he filed to challenge the 2010 denial of parole. From all the materials filed together with the KDOC offender records available on-line through KASPER, the following procedural history is found. While Mr. Lamb was on parole, he kidnapped one young woman near a shopping mall whom he murdered, and days later kidnapped another young woman near another shopping mall whom he released for ransom. In 1970, he was convicted in the District Court of Johnson County, Kansas, of two counts of kidnapping in the first degree and one count of murder in the first degree. He was sentenced to three consecutive terms of life imprisonment. While in pretrial detention on these charges he escaped with another inmate who had a gun, and they took a hostage. People were injured during
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this aggravated escape. Mr. Lamb was convicted of another aggravated escape in 1980, and another in 1988.
On March 3, 2010, Mr. Lamb's application for parole came before the KPB, which made the following findings:
After considering all statutory factors, the decision of the Kansas Parole Board is: pass to April 2015. Pass reasons: serious nature/ circumstances of crime; history of criminal activities; violent nature of crime; objections. Extended Pass Reasons: Inmate has been sentenced for a class A or B felony, or an off grid felony, and the Board makes a special finding that a subsequent parole hearing should be deferred for five (5) years and seven (7) months, because it is not reasonable to expect that parole would be granted at a hearing if held before then for the following reasons: inmate committed new crimes while incarcerated; the inmate's crime contained intentional and premeditation elements; the inmate is unsuitable for the community due to inability to comply with institutional rules; the inmate has not demonstrated behavioral insights necessary to decrease his risk to re-offend; the inmate has not demonstrated insight(s) into his offense behavior, inmate has indicated a pattern of behavior indicative of on-going risk to re-offend; the inmate has established a pattern of offending behavior that indicates escalating violence.
Petitioner challenged this decision in state court by filing a petition under K.S.A. § 60-1501 directly to the Kansas Supreme Court (KSC), which was summarily denied.2
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LEGAL STANDARDS
Respondents urge the court to apply the stricter standards that apply to petitions brought under § 2254 to this case. In some other circuits, challenges to denial of parole are brought in § 2254 petitions. The Tenth Circuit Court of Appeals has plainly held that seeking habeas corpus relief under § 2241, not § 2254, is the proper means for challenging a denial of parole, even though it appears to be a minority view. They reason that such claims are a challenge to the execution of a sentence rather than the validity of the underlying conviction or sentence. See e.g., Aquiar v. Tafoya, 95 Fed.Appx. 931, 932 (10th Cir. 2004)(unpublished);3 Ellibee v. Feleciano, 2011 WL 1102981, *8 (D.Kan. Mar. 22, 2011)("[A] § 2241 habeas petition is appropriate where a prisoner seeks 'either immediate release from prison or the shortening of confinement'.")(citing Montez v. McKinna, 208 F.3d 862, 864-65 (10th Cir. 2000)); see also Preiser v. Rodriguez, 411 U.S. 475, 489 (1973); Johnson v. Kansas Parole Bd., 419 Fed.Appx. 867, 869 (10th Cir.)(unpublished), cert. denied, 132 S.Ct. 300 (2011). Nonetheless, in unpublished opinions the Tenth Circuit has applied the demanding § 2254 standards to state prisoners
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seeking relief under § 2241 and held that some level of deference to the state court is required. Gilkey v. Kansas Parole Board, 318 Fed.Appx. 620, 621 (10th Cir. 2008)(unpublished)(giving "due deference" to state court's resolution of state prisoner's challenge to parole board's denial of parole and delay of further consideration for three years)(citing Henderson v. Scott, 260 F.3d 1213, 1214)(10th Cir. 2001), cert. denied, 535 U.S. 1063 (2002)("Although we analyze Mr. Henderson's claim under § 2241, we still accord deference to the [state appellate court's] determination of the federal constitutional issue.")); see Thomas v. Jones, 2008 WL 4693155, *2 (W.D.Okl. 2008)(unpublished)(collecting cases).4
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Under the AEDPA, a petitioner is entitled to relief only if he can establish that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The federal habeas court must presume that the state court's factual findings are correct unless the petitioner rebuts that presumption by "clear and convincing evidence." Id.; § 2254(e)(1).
Federal habeas review of a state parole board's decision under general § 2241 standards has also been quite limited.5 28
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U.S.C. § 2241(c)(3) provides that the "writ of habeas corpus shall not extend to a prisoner unless . . . he is in custody in violation of the Constitution or laws or treaties of the United States. . . ." Prior to applying the AEDPA standards to § 2241 petitions, the Tenth Circuit held that a federal court's habeas review of parole determinations is generally limited to "abuse of discretion, asking whether the Board's action resulted in an abridgement of the petitioner's constitutional rights." See Wildermuth v. Furlong, 147 F.3d 1234, 1236 (10th Cir. 1998)(quotation omitted); see also Schuemann v. Colorado State Board of Parole, 624 F.2d 172, 173 (10th Cir. 1980)([T]he decision of the parole board may not be overturned unless it was arbitrary, capricious or an abuse of discretion."). Even under these standards, federal courts are not to reweigh evidence, rule on credibility matters, or substitute their judgment for the judgment exercised by a parole board. Fiumara v. O'Brien, 889 F.2d 254, 257 (10th Cir. 1989), cert. denied, 495 U.S. 958 (1990).
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Under either standard, a habeas applicant bears the burden of showing entitlement to relief. Metes v. Dorsey, 61 F.3d 1459, 1472 (10th Cir. 1995), cert. denied, 516 U.S. 1062 (1996).
DISCUSSION
Whether petitioner's claims are analyzed under § 2241 or § 2254, the court has no difficulty determining that he fails to state a claim entitling him to federal habeas corpus relief.
1. Claim Based on Priest V. McKune
The court first considers petitioner's claim that the parole board's decision was arbitrary and capricious because it was contrary to Priest v. McKune, 178 P.3d 80 (Table)(Kan.App. 2008). In support of this claim, he alleges that contrary to Priest the KPB ignored favorable reports and other evidence, erroneously indicated that he had exhibited an inability to abide by institutional rules, repeated reasons, and in effect had no evidentiary basis for its decision.
This claim fails for two main reasons. First, it is expressly based upon an alleged violation of state law. Such an allegation presents no valid basis for federal habeas corpus relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it
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is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"); Montez, 208 F.3d at 865.
Second, liberally construed as intending to assert a federal constitutional claim, petitioner's allegations regarding the sufficiency or the validity of the evidence relied upon by the KPB, the weight of the evidence, and the reasonableness of the board's findings and decision are essentially substantive due process claims. See Black v. Romano, 471 U.S. 606, 615-16 (1985); Abdulhaseeb v. Jenks, 2005 WL 1239135, *6 (W.D. Okla.), ...
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