Tucker v. ALABAMA BD. PARDONS AND PAROLES

• Decision Date: 28 April 2000
• Citation: 781 So.2d 358
• Parties: William P. TUCKER v. ALABAMA BOARD OF PARDONS AND PAROLES.
• Court: Alabama Court of Criminal Appeals

781 So.2d 358

William P. TUCKER v. ALABAMA BOARD OF PARDONS AND PAROLES.

CR-99-0488.

Court of Criminal Appeals of Alabama.

April 28, 2000.

Opinion on Return to Remand August 25, 2000.

Rehearing Denied September 29, 2000.

Steven M. Sirmon, Montgomery, for appellant.

Gregory O. Griffin, Sr., chief counsel, Alabama Board of Pardons and Paroles, for appellee.

FRY, Judge.

On May 17, 1999, the appellant, William P. Tucker, filed a petition for a writ of certiorari in the Montgomery Circuit Court attacking the 1993 revocation of his parole by the Alabama Board of Pardons and Parole (hereinafter "the Board") and the March 22, 1999, denial by the Board of his request for parole. In an unpublished memorandum, we have today affirmed the 1993 revocation of Tucker's parole. See Tucker v. Alabama Bd. of Pardons & Paroles, (No. CR-99-0488) ___ So.2d ___ (Ala.Cr.App.2000) (table). In this opinion we address only the issue whether the circuit court erred by dismissing Tucker's petition challenging the denial of his request for parole.

Tucker was convicted of murder and of assault with intent to murder. He was sentenced to life imprisonment on the murder conviction and to eight years' imprisonment on the assault conviction. On June 2, 1980, Tucker was placed on parole. In 1992, his parole was revoked. Tucker requested to be placed on parole; the Board denied his request for parole on March 22, 1999. Tucker then filed this petition for a writ of certiorari.

In his petition Tucker alleged that the Board denied his request for parole because of a false report prepared by "Mr. Moody" at Kilby Correctional Facility. (C.R.5-10.) The state did not address this claim in its response; the circuit court did not address this claim in its order dismissing the petition.

Tucker's main contention on appeal is that his parole was denied based on fraudulent information. In Tedder v. Alabama Bd. of Pardons & Paroles, 677 So.2d 1261, 1263-64 (Ala.Cr.App.1996), this Court stated:

"`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. [Inmates of] Nebraska [Penal and Correctional Complex], 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.'"

(Emphasis added.)

Nothing in the record on appeal indicates whether the Board's denial of Tucker's request for parole was based on false, insufficient, or capricious reasons. Therefore, we remand this cause to the circuit court with directions that it address the merits of this claim and that it make specific, written findings of fact concerning this claim. On remand, the circuit court may conduct such further proceedings or take such evidence as it deems necessary. The circuit court shall take all action necessary to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include the circuit court's written order and a transcript of the remand proceedings, if any, conducted by the circuit court.

AFFIRMED BY MEMORANDUM IN PART; REMANDED WITH DIRECTIONS IN PART.

LONG, P.J., and McMILLAN, COBB, and BASCHAB, JJ., concur.

On Return to Remand

FRY, Judge.

The appellant, William P. Tucker, filed a petition for a writ of certiorari in the Montgomery Circuit Court attacking the March 22, 1999, denial of his request for parole by the Alabama Board of Pardons and Paroles (hereinafter "the Board"). In his petition Tucker alleged that the Board denied his request for parole based on fraudulent information contained in his file. Neither the Board, in its response, not the circuit court, in its order denying the petition addressed the merits of this claim. We remanded this cause to the circuit court with directions that it address the merits of Tucker's claim that the Board denied his request for parole based on a false report and that it make specific written findings of fact concerning this claim. Tucker v. Alabama Bd. of Pardons & Paroles, 781 So.2d 358 (Ala.Crim.App. 2000). We concluded that, although Tucker did not have a liberty interest in parole, remand of the cause was required because the record before us did not address whether Tucker's file contained false information that the Board may have considered in denying parole. See Tedder v. Alabama Bd. of Pardons & Paroles, 677 So.2d 1261, 1263 (Ala.Crim.App. 1996) (holding that prisoners do not have a liberty interest in parole, but that § 15-22-26, Ala. Code 1975,¹ "cannot be read as granting the Board the discretion to rely upon false information to determine whether to grant parole"). The circuit court has complied with our order and submitted the following order on return to remand:

"On April 28, 2000, the Alabama Court of Criminal Appeals remanded this case to this Court with directions to address the merits of [Tucker's] claim that the Alabama Board of Pardons and Paroles (Board) denied his request for parole based on a false report prepared by `Mr. Moody' at Kilby Correctional Facility. In compliance with the Alabama Court of Criminal Appeals' order, on May 5, 2000, this Court ordered the [Board] to file a Special Report regarding the issue set out above. The [Board] was given an opportunity to submit evidence supporting his position. The Court has received and reviewed the parties' responses, as well as the documents

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