Lomax v. Warden, Maryland Correctional Training Center

• Decision Date: 01 September 1997
• Docket Number: No. 83,83
• Citation: 120 Md.App. 314,707 A.2d 395
• Parties: Walter E. LOMAX v. WARDEN, MARYLAND CORRECTIONAL TRAINING CENTER. ,
• Court: Court of Special Appeals of Maryland

Page 314

120 Md.App. 314

707 A.2d 395

Walter E. LOMAX v. WARDEN, MARYLAND CORRECTIONAL TRAINING CENTER.

No. 83, Sept. Term, 1997.

Court of Special Appeals of Maryland.

Jan. 7, 1998.

Reconsideration Denied Feb. 25, 1998.

Walter Lomax, Hagerstown, for Appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Submitted before WENNER, HARRELL and SONNER, JJ.

HARRELL, Judge.

Mr. Walter E. Lomax, appellant, essentially asks us to determine whether a statement the Governor made at a press conference is more than merely "news." In this case, we answer no.

This appeal from the denial of what facially is styled as a habeas corpus petition focuses primarily on the nature, constitutionality, and effect of Governor Glendening's pronouncement during a press conference on 21 September 1995 that he would not approve parole for "violent offenders" sentenced to life imprisonment unless they were very old or terminally ill. Governor Glendening stated that "[i]f you murder or rape and you are sentenced to life in prison in Maryland, you will serve a life sentence." (Emphasis in original press release). In addition, the Governor stated that he had "directed the Parole Board not to even recommend--to not even send to [his] desk--a request for parole for murderers [sic] and rapists."

During the course of that press conference, the Governor publicly declined to approve the Maryland Parole Commission's parole recommendations for eight inmates sentenced to life imprisonment ("lifers"), including appellant here. Aggrieved, appellant subsequently filed a petition for habeas corpus relief in the Circuit Court for Baltimore City. The Honorable John C. Themelis of that court denied the petition by written Memorandum and Order, dated 27 January 1997. Appellant, acting in proper person here as he did below, appeals from that denial.

Appellee suggests that we consider a threshold issue before deciding whether to reach the merits of the appeal. Appellee's query, which we have rephrased, is:

I. Whether appellant's petition for writ of habeas corpus provides a basis for relief.

In the event that we find no merit in the State's assertion, appellant raises the following issues for our consideration, which we have rephrased and reorganized as follows:

II. Whether the Governor's pronouncement deprived appellant of "meaningful parole consideration," in violation of Article 24 of the Maryland Declaration of Rights and the 14th Amendment of the U.S. Constitution.

III. Whether the Governor's pronouncement violates the ex post facto clauses of the Maryland Declaration of Rights, Article 17 and the U.S. Constitution Article I, section 10, clause 1.

IV. Whether the Governor's pronouncement violates the separation of powers doctrine set forth in Article 8 of the Maryland Declaration of Rights.

V. Whether the trial court, in issuing its memorandum and order denying appellant habeas corpus relief, insufficiently addressed the issues in appellant's petition, and whether the trial court failed to comply with Maryland Rule 15-311 (former Maryland Rule Z53). ¹

We find no merit in any of the parties' arguments. Accordingly, we affirm the judgment of the trial court.

PROCEDURAL HISTORY

On 14 January 1969, the Circuit Court for Baltimore City (Shirley B. Jones, J.), sentenced appellant in three criminal cases. ² The court sentenced him to a life sentence in one case, and ten and twenty years respectively in the second and third cases. The court ordered appellant to serve the ten and twenty year sentences concurrent with the life sentence. In 1994, the Maryland Parole Commission recommended appellant for release on parole. On 21 September 1995, Governor Parris N. Glendening declined to approve that recommendation.

Appellant subsequently filed a petition for habeas corpus relief and then a supplement to the petition on 19 December 1996 and 30 January 1997, respectively. In his petition, appellant challenged the constitutionality of Governor Glendening's parole policy on federal and state due process and ex post facto grounds, and claimed a violation of the state separation of powers doctrine. On 27 January 1997, the circuit court denied appellant's petition. The court concluded that appellant had no constitutional right to parole and therefore had no constitutionally protected liberty interest in parole release. The court further held that parole is a purely executive function, vested exclusively in the Parole Commission, and therefore the court could not interfere with the Commission's decision to approve or deny parole.

Appellant filed a Motion to Vacate, Alter, Amend, or Revise the Final Order on 12 February 1997, which the court denied on 18 February 1997. Following that denial, appellant filed this appeal.

STATUTORY HISTORY: MARYLAND PAROLE LAW

The Maryland Constitution, article 3, section 60 states that "[t]he General Assembly of Maryland shall have the power to provide by suitable general enactment ... (c) for the release upon parole in whatever manner the General Assembly may prescribe, of convicts imprisoned under sentence for crimes." Pursuant to that authority, the General Assembly established the Maryland Parole Commission ("the Commission"). See Md.Code (1957, 1997 Repl.Vol.), Art. 41 § 4-502. The General Assembly gave the Commission, among other powers and duties, the "exclusive power" to "[a]uthorize the parole of individuals sentenced under the laws of this State to any penal or correctional institution, jail, or other place of confinement or detention within the State." Md.Code (1957, 1997 Repl.Vol., 1997 Supp.), Art. 41 § 4-504(a)(1). In addition, the statute grants the Commission the "exclusive power" to "[h]ear cases for parole release in which ... [t]he inmate is serving a sentence of life imprisonment." Id. § 4-504(a)(3)(iii). Section 4-506 establishes multiple factors that each hearing examiner and Commission member must consider when determining whether an inmate is suitable for parole. These factors are:

(1) The circumstances surrounding the crime;

(2) The physical, mental, and moral qualification of the inmate eligible for parole;

(3) The progress of the inmate during his confinement ...;

(4) Whether or not there is a reasonable probability that the inmate, if released on parole, will remain at liberty without violating the law;

(5) Whether or not release on parole of the inmate is compatible with the welfare of society;

(6) An updated victim impact statement or recommendation ...;

(7) Any recommendation made by the sentencing judge at the time of sentencing;

(8) Any information that is presented to a Commission member at a meeting with the victim; and

(9) Any testimony presented to the Commission by the victim or the victim's designated representative....

Of particular relevance to appellant's situation, the General Assembly has set forth additional provisions that specifically address applications for parole of inmates serving life sentences. Section 4-504(b)(3) establishes that "[t]he Commission shall ... [r]eview and make recommendations to the Governor concerning applications for ... parole of a person under a sentence of life imprisonment...." In addition, in section 4-516(d), the General Assembly set forth its intent to give the Governor, rather than the Commission, the final authority to parole inmates sentenced to life imprisonment. Section 4-516(d) provides in relevant part:

(d) Prisoners serving life imprisonment.--(1) ... [A] person who has been sentenced to life imprisonment is not eligible for parole consideration until the person has served 15 years or the equal of 15 years when considering the allowances for diminution of period of confinement.... (4) If eligible for parole under this subsection, an inmate serving a term of life imprisonment ... shall only be paroled with the approval of the Governor.

The Parole Commission's statutory authority and administrative policy regarding parole for inmates serving life sentences is further amplified in the Code of Maryland Regulations ("COMAR"). ³ COMAR 12.08.01.17 § A(7)(a) and (g) state that inmates sentenced to life imprisonment are eligible for parole after 15, or the equivalent of 15, years and that "[i]f the Commission meeting en banc agrees that the prisoner should be granted parole, the Commission's recommendation for parole shall be forwarded to the Governor." In addition, COMAR 12.08.01.17 § A(6)(a) provides that "[t]he file of a prisoner sentenced to life imprisonment, or to a term of 25 years or more shall be administratively reviewed by the Commission after serving a term of 5 years of the sentence...." Pursuant to COMAR 12.08.01.17 § A(6)(f), an administrative review shall:

(i) Be conducted by a randomly assigned Commission member or hearing examiner (ii) Ensure that the file contains the necessary documents;

(iii) Develop a chronological record of the case before the initial parole release hearing; and

(iv) Be sent to the prisoner and the institution where the prisoner is incarcerated.

With these statutory and administrative provisions in mind, we approach the matters placed before us.

I.

Initially, we address the State's principal argument that appellant's petition offered no basis for habeas corpus relief. In addition, we address whether appellant has a right to appeal from the circuit court's denial of his application for a writ of habeas corpus, styled as such or as the substance of the petition may otherwise warrant.

A.

Appellee argues that appellant, in his petition for habeas corpus, did not challenge the lawfulness of his current detention and, therefore, the petition does not lie. See Hazel v. State, 226 Md. 254, 264, 173 A.2d 187 (1961). In Hazel, the Court of Appeals stated that "[c]ontentions which go to the regularity, rather than to the validity of the proceedings, cannot be raised by habeas corpus...." Id at 264, 173 A.2d 187. We need not decide...