Daniel D. Crabtree, United States District Judge.
This matter comes before the court on Glenn A. Heath's pro se
The Kansas Court of Appeals summarized the facts of petitioner's state-court case this way:
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 Dec. 16, 2016) (unpublished table decision) (internal citations, alterations, and quotation marks omitted).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,
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 Board
After sifting through petitioner's filings, the court organizes the grounds for relief slightly differently than the Petition does. Under the court's formulation, the first ground of relief argues that the Review Board denied petitioner's due process rights by acting arbitrarily and capriciously and refusing to disclose the evidence on which it based its decision. It contends that petitioner has a right to due process because he has a liberty interest created by Kan. Stat. Ann. § 75-5201 et seq. and § 22-3717(g)(2) and (h). Also, it argues that the Ninth Amendment creates a liberty interest in parole. Second, the Petition contends that the Review Board denied petitioner parole even though it granted parole to similarly situated prisoners, thus violating the Equal Protection Clause. Third, the Petition contends, the Review Board conditioned his parole status on him asserting a government message. This compulsion, petitioner contends, violates the First Amendment.
For reasons explained below, none of these provide a basis to issue a writ of habeas corpus. The court begins its discussion with an overview of the correct standard of review. Then, the court addresses, in turn, each ground for relief.
When a petitioner challenges a parole board's decision to deny parole, petitioner must file a petition under 28 U.S.C. § 2241. Heath v. McKune, No. 11-3194-SAC, 2012 WL 10351, at *2 (D. Kan. Jan. 3, 2012). Section 2241 allows a petitioner habeas relief when he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). The court can deny the petition without an evidentiary hearing if the Petition's allegations — to the extent the existing factual record does not controvert them — establish that petitioner is not entitled to habeas relief. Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998). The court is mindful that "[t]he role of a federal habeas court is to guard against extreme malfunctions in the state criminal justice systems, not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judge" — or in this case, the Review Board. Davis v. Ayala, ___ U.S. ___, 135 S.Ct. 2187, 2202, 192 L.Ed.2d 323 (2015) (internal citation and quotation omitted).
"The Due Process Clause applies when government action deprives a person of liberty or property." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). So, the first question the court must answer is whether a protectable right is at stake here. Id.
A protectable right is not simply something that a person professes to have an abstract need or desire to acquire. Id. Instead, a person has a protectable liberty or property right when he has a "legitimate claim of entitlement" to something, like parole. Id. The Constitution creates no "legitimate claim of entitlement" to parole before the original sentence imposed by the sentencing court expires. Id. But a state statute can create a "legitimate claim of entitlement" to parole when the statute leaves little discretion to a parole board. Id. at 12, 99 S.Ct. 2100; cf. Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir. 1994) (holding that Utah's parole statute did not create a liberty interest because it gave its parole board wide discretion to determine whether to release a prisoner on parole). The question, then, is whether Kansas's parole statute leaves the Review Board with little discretion.
Both the Kansas Supreme Court and the Tenth Circuit have addressed this very issue. See Johnson v. Kan. Parole Bd., 419 F. App'x 867 (10th Cir. 2011); Gilmore v. Kan. Parole Bd., 243 Kan. 173, 756 P.2d 410 (1988). And both concluded that the Kansas parole statute is discretionary because it directs the Review Board to consider a wide range of factors and confers the option of granting parole. See Johnson, 419 F. App'x at 871 ("But the Kansas Supreme Court has held the Kansas parole statute is discretionary; it therefore does not create a protected liberty interest."); Gilmore, 756 P.2d at 415 ("[T]he Kansas parole statute does not give rise to a liberty interest when the matter before the Board is the granting or denial of parole to one in custody."). Indeed, the Kansas parole statute provides that the Review Board "may" grant parole if certain conditions are met. Kan. Stat. Ann. § 22-3717(h); cf. Greenholtz, 442 U.S. at 11, 99 S.Ct. 2100 (holding that a statute that provided that the parole board "shall" grant parole unless certain conditions are met creates a protectable interest in parole). These authorities recognize that petitioner has no liberty interest in parole under the Kansas statute. Petitioner's due process argument thus fails.
Kan. Stat. Ann. § 75-5201 et seq. generally addresses how the Department of Corrections treats and rehabilitates convicted felons. Kan. Stat. Ann. § 75-5201. One step in that rehabilitation is an agreement between the Secretary of Corrections and an inmate sentenced for an "off grid crime" — such as felony murder. Id. § 75-5210a(a). Under this agreement, the Secretary and the inmate agree that the inmate must meet certain educational, vocational, mental health, and other bench marks before the inmate is released on parole. Id. When the inmate meets these benchmarks, the Secretary reports the inmate's success to the Review Board. Id. Kansas law also prohibits the Review Board from releasing an inmate on parole until the Secretary informs the board that the inmate has fulfilled the agreement. Id. § 22-3717(g)(2). While meeting the benchmarks of the agreement is a necessary requirement for parole, it is not the only requirement. The Review Board also must conclude that: (1) the inmate can be a law-abiding citizen once released; and (2) releasing the inmate will not harm the community or the inmate. Id. Even then, the Review Board retains discretion to release the inmate or not. Id.; see also Gilmore, 756 P.2d at 415.
If petitioner argued that the Secretary of Corrections refused to create a rehabilitation agreement under § 75-5210a, his due process argument might persuade the court. But the issue before the court is whether the Review Board denied petitioner a protected right without due process — not the Secretary of Corrections. And § 75-5210a does not create a protectable right to parole. The Secretary must develop a rehabilitation plan for petitioner, but § 75-5210a does not mandate that petitioner's released on parole once he fulfills the terms of the agreement. Instead, it simply provides that the Secretary must inform the Review Board of petitioner's achievement. From there, the Review Board, in its discretion, decides whether to grant parole. See Kan. Stat. Ann. § 22-3717(g). Neither Kan. Stat. Ann. § 75-5201 et seq. nor § 22-3717(g) or (h) create a contract that gives petitioner a protected property or liberty interest in parole.
Petitioner also argues that the Ninth Amendment granted him a right to parole. He cites Charles v. Brown, 495 F.Supp. 862 (N.D. Ala. 1980), as support but Charles does not help him. There, plaintiffs brought a § 1983 action, arguing that defendants published an article about their child without permission. Id. at 863. This article, plaintiffs alleged, subjected them to public contempt and ridicule. Id. They alleged that this treatment violated the Ninth Amendment because that amendment protects the right to privacy. Id. Defendants filed a motion to dismiss, arguing that the Ninth Amendment created no such a right. Id. The district court agreed.
While the court finds no Tenth Circuit case explicitly adopting Charles's rationale, the court predicts that it would do so if presented with the issue. See United States v. Baer, 235 F.3d 561, 564 (10th Cir. 2000) (holding that the Ninth Amendment does not create an unenumerated constitutional right to bear firearms separate from the Second Amendment). So, while the Ninth Amendment prohibits courts from concluding that a right does not exist simply because it is not listed in the Constitution, it does not create a right to parole, or even create a right to liberty in general. That responsibility is left to the first eight amendments and the Fourteenth Amendment. And, as already explained, nothing in the Constitution or state law creates a protectable right to parole. See Greenholtz, 442 U.S. at 7, 99 S.Ct. 2100; Gilmore, 756 P.2d at 415.
Next, petitioner argues that the Review Board denied him equal protection under the law because it has granted other similarly situated inmates parole while denying him parole. In making this argument, he invokes the Equal Protection Clause's "class of one" doctrine.
Typically, a petition must establish an equal protection violation by showing that a governmental decision-maker intentionally discriminated against someone because that person is part of a particular class of people. SECSYS, LLC v. Vigil, 666 F.3d 678, 685-86 (10th Cir. 2012). But under the "class of one" doctrine, petitioner can establish an equal protection violation by showing that a government actor discriminated against a specific individual. Id. at 688. To make this showing, petitioner must satisfy a two-part test. First, he must show that a government actor intentionally treated him differently than it treated others who are similarly situated. Id. This requires proof that individuals with materially similar traits exist. Id. Second, the petitioner must show that no rational basis existed to treat him differently based on any differences between the petitioner and those with whom he compares himself. Id. Courts, however, approach these cases with caution. A.M. v. Holmes, 830 F.3d 1123, 1167 (10th Cir. 2016). Otherwise, every exercise of governmental discretion could give rise to a "class of one" claim. Id.
Here, petitioner argues that he is similarly situated with two other inmates — Mr. Altum and Mr. Williams — who the Review Board recently released on parole. Like petitioner, both were convicted for killing young children. But petitioner argues several facts made them even less qualified for release than he is. For example, the other prisoners presented a "higher risk" for release because of their behavior in prison. Specifically, Mr. Altum and Mr. Williams each received four disciplinary reports in prison while petitioner received none. Doc. 1 at 21. And, petitioner contends, their convictions involved much more brutal facts. Mr. Williams shook a three-year old so forcefully that she died. Mr. Altum struck a 14-month old on the head several times, which caused the child's death. Despite the brutality of their crimes, both inmates served less time before parole than petitioner has served.
Petitioner also asserts that his situation is like another inmate's situation — Mr.
Petitioner, however, fails to identify any other similarities with the other prisoners. For instance, petitioner fails to specify whether the public or the victim's family expressed significant opposition to their release. See Kan. Stat. Ann. § 22-3717(h) (requiring the Review Board to consider the public and victim's family's statements when deciding whether to release a prisoner on parole). Also, while both Mr. Altum and Mr. Williams were convicted for killing children, the facts of their convictions and petitioner's conviction differ. Importantly, petitioner struck a child with the same amount of force as if the child fell from a two-story building onto a chair leg. Neither Mr. Altum nor Mr. Williams exerted as much force in one blow. Mr. Wilson was convicted of sodomizing a child, so his conviction — while serious — also involved different conduct than the facts supporting petitioner's conviction. Mr. Wilson also served more time in prison when the Review Board released him than petitioner had served when the Review Board considered his request. Finally, nothing in the record indicates Mr. Altum or Mr. Williams denied responsibility for their crimes when the Review Board released them. So, the court cannot conclude that petitioner and the other inmates are similarly situated.
Petitioner also fails to establish the second prong on the class of one test, i.e., that the Review Board had no rational basis for denying him parole while releasing the other inmates based on their differences. A decision has a rational basis when an objectively reasonable basis exists to treat petitioner and those he compares himself with differently based on the differences between them. Jicarilla Apache Nation v. Rio Arriba Cty., 440 F.3d 1202, 1211 (10th Cir. 2006). As already identified, two notable differences exist between Mr. Altum and Mr. William's cases and petitioner's case. And these differences provide a rational basis for the differing decisions. First, petitioner refuses to accept responsibility for his crime. And second, the public and the victim's family opposed granting petitioner parole. No similar objections existed for Mr. Altum or Mr. Williams. Given these differences, the court cannot say that the Review Board acted irrationally based. Indeed, the Kansas parole statute requires the Review Board to consider the comments of the public and the victim's family about the potential parolee, as well as the inmate's acceptance of responsibility for his crime. Kan. Stat. Ann. § 22-3717(h).
Petitioner argues that the Review Board acted irrationally because it granted parole to Mr. Altum and Mr. Williams, who committed more brutal crimes. The court disagrees. The medical expert who testified at petitioner's trial described the amount of force needed to cause the injury that ultimately led to the child's death as equivalent to the child falling from a "two-story building onto the bottom of the leg of a chair." State v. Heath, 264 Kan. 557, 957 P.2d 449, 457 (1998). While the other prisoners may have struck the child they killed multiple times, the Review Board is not required to conclude that their conduct was more brutal simply because the other inmates struck the child more times. This is particularly true because the amount of force described in petitioner's case was not presented by Mr. Altum or Mr. Williams's case. And, regardless, the nature of circumstances of the crime is only one factor among many the Review Board considers. See Kan. Stat. Ann. § 22-3717(h).
Petitioner also argues that the Review Board should not have considered the amount of force used because it forms
This decision did not reverse the jury's factual findings supporting the felony-murder or child abuse conviction. Instead, the Kansas Supreme Court's ruling was derived from a legal conclusion — namely, that petitioner could not be convicted of both felony-murder and child abuse. Id. Because the Constitution bars the state from convicting someone twice for the same crime, the Kansas Supreme Court reversed his conviction and vacated his sentence for the child abuse conviction. Id. This means the Review Board cannot consider the child abuse conviction when making a parole decision. See United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (holding that a sentencing judge violates a person's rights when it considers vacated convictions when imposing its sentence). But because the Kansas Supreme Court decision never held that the jury lacked sufficient evidence to convict petitioner for felony murder, the Review Board properly could consider the facts supporting that conviction — including the method by which he killed the child. Id.; see also Heath v. McKune, 2012 WL 10351, at *2 (explaining, in petitioner's earlier habeas petition, that the "child abuse conviction was overturned because it was duplicative, not because he was found by a judge or jury not to have committed any acts of abuse").
Petitioner also argues that the Review Board's decision was irrational because Mr. Altum and Mr. Williams received more disciplinary actions while in custody, so they were considered a "higher risk" prisoner than petitioner, who presented a "lower risk." While this difference may exist, it does not require the Review Board — when exercising its discretion — to conclude that petitioner should be released on parole. Indeed, the decision to grant parole involves numerous considerations. Greenholtz, 442 U.S. at 8, 99 S.Ct. 2100. And other considerations — like plaintiff's refusal to accept responsibility, the objections of the public and the victim's family, and the serious nature of petitioner's crime — provided a rational basis to deny petitioner parole. This difference does not warrant a conclusion that the Review Board discriminated against petitioner.
Jennings v. City of Stillwater, 383 F.3d 1199 (10th Cir. 2004), helps illustrate why petitioner's claim fails here. In that case, the plaintiff sued a detective who failed to investigate her allegations of rape vigorously under 42 U.S.C. § 1983. Id. at 1200. She argued, in relevant part, that she was a "class of one" and that the detective treated her differently than similarly situated rape survivors. Id. at 1210. The detective moved for summary judgment, and the district court granted the motion. Id. at 1200. The Tenth Circuit affirmed, explaining that plaintiff failed to adduce evidence to support the first element of a class of one claim, i.e., that the detective
Plaintiff's failure to produce any evidence about how vigorously the detective investigated allegations made by rape survivors with materially similar circumstances particularly concerned the Circuit. Id. at 1215. It analogized the decision to investigate a crime to the decision to prosecute a crime, and noted that the Supreme Court has imposed a heightened pleading burden on plaintiffs who allege that prosecutors discriminatorily file criminal charges. Id. at 1214 (citing United States v. Armstrong, 517 U.S. 456, 463-64, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)). The Supreme Court imposed this burden, the Circuit explained, because the decision to prosecute a case — much like the decision to investigate an alleged crime — requires the decision-maker to evaluate many legitimate factors. Id. And some of those factors are not ones the court can evaluate properly. Id. Because so many considerations figured in both decisions, the Tenth Circuit reasoned, plaintiff needed — but ultimately failed — to adduce evidence that her case had extremely similar strengths and weaknesses as other cases that the detective decided to investigate. Id. at 1215. Such a flaw was fatal to her class of one claim. Id.
The decision to grant parole involves a similarly large number of factors, many of which the court cannot evaluate properly. The Kansas statute enumerates more than 15 different considerations that the Review Board must consider. See Kan. Stat. Ann. § 22-3717(h). And the Supreme Court has recognized that the decision to grant parole is a difficult one that requires an individualized assessment. See Greenholtz, 442 U.S. at 8, 99 S.Ct. 2100 ("In parole releases, ... few certainties exist. In each case, the decision differs from the traditional mold of judicial decisionmaking in that the choice involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community."); see also Jennings, 383 F.3d at 1215 ("[T]he multiplicity of relevant (nondiscriminatory) variables requires plaintiff to provide compelling evidence of other similarly situated persons who were in fact treated differently.").
Petitioner has failed to meet the heavy burden imposed by Jennings. While petitioner has identified other inmates who the Review Board has released on parole and some have similar traits as petitioner, the factual similarities petitioner identifies are not enough to sustain a "class of one" claim. And the evident differences support rational reasons for treating petitioner differently from Mr. Altum, Mr. Williams, and Mr. Wilson. Moreover, the decision to grant parole — like the decision to prosecute a case or investigate an alleged crime — requires the evaluation of many factors, some of which the court simply is unequipped to evaluate properly. The court denies the petition for these reasons.
Finally, petitioner argues that the Review Board impermissibly denied parole because he did not admit responsibility for his crime. The Kansas parole statute requires the Review Board to consider whether an inmate has accepted responsibility for his crime when deciding whether to release him. He argues that this amounts to compelled speech, which violates the First Amendment.
In general, the First Amendment "`prohibits the government from telling people what they must say.'" Agency for Int'l Dev. v. Alliance for Open Society Int'l, Inc., 570 U.S. 205, 213, 133 S.Ct. 2321, 186 L.Ed.2d 398 (2013) (quoting Rumsfeld v. Forum for Acad. & Institutional
But even when the court applies "exacting scrutiny" to the Kansas parole statute, it survives that challenge. To survive this exacting scrutiny, the government must prove that the law is narrowly tailored to serve compelling governmental interests. Reed v. Town of Gilbert, Ariz., ___ U.S. ___, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015).
Here, the Kansas parole statute serves a compelling governmental interest and is narrowly tailored to serve that purpose. Kansas's prison system has as a goal to rehabilitate any convicted felon. See Kan. Stat. Ann. § 75-5201 ("The legislative purpose in enacting this act [establishing the Department of Corrections] shall be deemed to be establishment of a policy of treatment of persons convicted of felonies in this state by placing maximum emphasis on rehabilitation...."). Parole is part of that process. Id. And states have a "vital interest in rehabilitating" prisoners.
Under the Rules Governing Section 2254 Cases,
Under 28 U.S.C. § 2253(c)(2), the court can issue a certificate of appealability to petitioner "only if the applicant has made a substantial showing of the denial of a constitutional right," and the court "indicates which specific issue or issues satisfy [that] showing." A petitioner can satisfy this standard by demonstrating that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," or that the issues presented in the petition are "adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), superseded in part by 28 U.S.C. § 2253).
Here, the court declines to issue a certificate of appealability. Nothing suggests that the court's rulings in this case are debatable or incorrect, and no record authority suggests that the Tenth Circuit would resolve this case any differently. While it declines to issue the certificate, the court notes that petitioner may not appeal the denial of a certificate but he still may seek a certificate of appealability from the Tenth Circuit. See Rules Governing Section 2254 Cases, Rule 11(a).
For reasons explained above, the court denies the Petition for Writ of Habeas Corpus (Doc. 1), the Motion for Hearing (Doc. 20), and the Motion to Produce (Doc. 21).
