Smith v. Liller

• Decision Date: 23 March 2004
• Docket Number: No. CIV.A. 2:97CV87.,CIV.A. 2:97CV87.
• Citation: 314 F.Supp.2d 623
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Kenneth Mack SMITH, Petitioner, v. J.N. LILLER, Superintendent and Bruce Carter, Chairman, Respondents.

314 F.Supp.2d 623

Kenneth Mack SMITH, Petitioner, v. J.N. LILLER, Superintendent and Bruce Carter, Chairman, Respondents.

No. CIV.A. 2:97CV87.

United States District Court, N.D. West Virginia.

March 23, 2004.

Kenneth Mack Smith, Grafton, WV, Pro Se.

Chad M. Cardinal, WV Regional Jail & Correctional Facility Authority, Charleston, WV, for Respondents.

ORDER

MAXWELL, District Judge.

It will be remembered that the petitioner, a state prisoner proceeding pro se, seeks to pursue his remedies in this habeas corpus action pursuant to 28 U.S.C. § 2254.¹ By Order entered January 13, 1998, the Court provided the Respondents with sixty (60) days in which to answer the petition and to show cause why the petition should not be granted. On March 16, 1998, the Respondents filed their Answer and Response to Order to Show Cause with the Court.

It will further be remembered that by Order entered March 19, 1998, the Petitioner was provided with notice of an opportunity to respond to the Respondents' Answer and was directed to file any such response within thirty (30) days of the date of entry of said Order.

On June 10, 1998, the Petitioner filed a Motion for Summary Judgment. By Order entered on March 27, 2000, the Court, not having received any response from the Respondents to the Petitioner's Motion for Summary Judgment, gave the Respondents thirty (30) days from the date of entry of said Order in which to file any response they might have to the Petitioner's Motion for Summary Judgment.

The Court's March 27, 2000, Order also found that because the Respondents' Answer and Response to Order to Show Cause sought dismissal of the above-styled civil action based on the Petitioner's failure to exhaust state remedies, and submitted various exhibits said Answer and Response would be considered a Motion for Summary Judgment and would be disposed of in accordance with Rule 56 of the Federal Rules of Civil Procedure. In this regard, the Court's March 27, 2000 Order, provided the Petitioner with notice of his right to fully respond² to the document that the Court had construed to be a Motion for Summary Judgment, including the right to submit affidavits or any other materials which would tend to show that there is a genuine issue as to any material fact and the Respondents are not entitled to judgment as a matter of law and gave the Petitioner thirty (30) days from the date of entry of said Order to file any such response. See, Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975) (pro se litigant must be given meaningful notice of opportunity to respond to a motion for summary judgment).

The Court's review of the docket in the above-styled civil action reveals that, to date, no further response to either the Petitioner's Motion for Summary Judgment or the Respondent's Motion for Summary Judgment has been filed with the Court. Accordingly, this matter is now mature for consideration.

In his October 8, 1997 Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus by a Person in State Custody, the Petitioner challenges the West Virginia Parole Board's July 1996 and July 1997, decisions to deny him parole. In his first ground for relief, the Petitioner alleges that he was denied due process and equal protection with regard to the July 1996 denial of parole because he did not receive adequate notice of the date of the parole hearing. Specifically, the Petitioner alleges that although he was notified in June of 1996, that his parole hearing would be held on July 9, 1996³, the parole hearing was actually held on July 8, 1996.⁴ According to the Petitioner, the July 8, 1996, hearing amounted to a "hearing by ambush," which denied him both his "legitimate expectation interest" in being released on parole and his due process rights.

In his second ground for relief, the Petitioner alleges that he was denied due process and equal protection with regard to the July 1996 denial of parole because the West Virginia Parole Board's July 8, 1996, decision was arbitrary and capricious. Specifically, the Petitioner asserts that he had met and continues to meet all of the objectives for release on parole that are established by West Virginia Code §§ 62-12-13, et seq., namely that he had served the minimum term of his sentence; was not under punishment or in solitary confinement for any infraction of prison rules; and had maintained a good conduct record for the minimum term of his incarceration. The Petitioner further argues that his satisfaction of the foregoing objectives, when considered in conjunction with his work record at Fairmont State College and the Salem Industrial Home for youth and the record of his participation in educational and therapeutic programs, should have satisfied the West Virginia Parole Board that he would act lawfully when released.⁵

The Petitioner asserts in his third ground for relief that the West Virginia Parole Board acted arbitrarily, capriciously and recklessly in denying him parole when it improperly focused upon factors which were beyond his control, namely his prior criminal record, the offense for which he is seeking parole; and negative community and/or official sentiment.

The Petitioner's fourth and final ground for relief relates to the West Virginia Parole Board's July 7, 1997, decision to deny him parole. Specifically, the Petitioner argues that the West Virginia Parole Board abused its discretion by emphasizing his criminal activity prior to incarceration in reaching its determination that parole should be denied.⁶

In their Answer and Response to Order to Show Cause, which the Court has construed as a Motion for Summary Judgment, the Respondents argue first that the Petitioner has failed to exhaust his state remedies with regard to the issues raised and suggested by his petition regarding the West Virginia Parole Board's July 1997 decision denying him parole. The Respondents also assert that even though the Petitioner has exhausted his state remedies with regard to the issues raised and suggested by his Petition regarding the West Virginia Parole Board's July 1996 decision denying him parole, all such issues were rendered moot by the Petitioner's July 1997, parole interview.

The Respondents' second argument is that the Petitioner's assertion that he had met and continues to meet all of the objective statutory requirements for release on parole is factually and legally defective. Specifically, the Respondents point out that an inmate has no expectation or entitlement to release on parole in the State of West Virginia, but only becomes eligible to be considered for parole. The Respondents note that what the Petitioner seems to believe are objective statutory requirements, which, if met, entitle him to an automatic release, are really the objective requirements that must be met before an inmate becomes eligible to be considered for parole.⁷ Finally, the Respondents point out that once an inmate has met the four objective requirements making him or her eligible to be considered for parole, the inmate must then satisfy the objective requirement set forth in West Virginia Code § 62-12-13(b)(5)⁸, i.e., satisfying the West Virginia Parole Board that he or she is not a danger to the community. The Respondents note, in this regard, that the West Virginia Parole Board has broad discretion, pursuant to West Virginia Code § 62-12-13(a)⁹, in determining whether parole should be granted.

In response to the Petitioner's third and fourth grounds for relief, the Respondents point out that, contrary to the Petitioner's assertion that the West Virginia Parole Board was not entitled, in reaching its decision to deny or grant parole, to focus upon factors such as the Petitioner's prior criminal activity and community sentiment, said Parole Board is not just permitted to do so, but is required to do so by West Virginia Code § 62-12-13(d).¹⁰ In this regard, the respondents distinguish the case relied upon by the petitioner, Rowe v. Whyte, 167 W.Va. 668, 280 S.E.2d 301 (1981), wherein the West Virginia Supreme Court of Appeals found that there had been an arbitrary and capricious denial of the inmate's release on parole where the parole board's primary focus was on the prisoner's criminal activity and where the parole board made only a superficial examination of the other relevant factors. In contrast to the parole board in the Rowe case, the Respondents note that the West Virginia Parole Board's July 14, 1997, letter denying the Petitioner parole clearly articulates how said Parole Board weighed each of the relevant factors, both positively and negatively, and reflects that said Parole Board did more than superficially examine the relevant factors before reaching a conclusion.

The Respondents conclude their arguments by asserting that the petitioner has also failed to state a claim of denial of procedural due process. In this regard, the Respondents note that the Petitioner was given notice of the parole interview; was allowed to participate in said interview in a meaningful way; and was given the opportunity to present evidence and challenge the accuracy of the records of his convictions, conduct and activities while incarcerated.

As previously noted, both parties have moved for summary judgment. The Supreme Court has recognized the appropriateness of Rule 56 summary judgment motions in habeas cases. See Blackledge v. Allison, 431 U.S. 63, 80, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). So too, has the Fourth Circuit Court of Appeals. See Maynard v. Dixon, 943 F.2d 407 (4th Cir.1991), cert. denied, 502 U.S. 1110, 112 S.Ct. 1211, 117 L.Ed.2d 450 (1992).

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists "if the...