United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE
James Brooks, a state inmate at Staton Correctional Facility
in Elmore, Alabama, filed this petition for writ of habeas
corpus under 28 U.S.C. § 2254. Doc. 1. Brooks challenges
the decision by the Alabama Board of Pardons and Paroles (the
“Parole Board”) to rescind his parole after it
initially granted parole.
was serving life sentences for convictions in the Washington
County Circuit Court for third-degree burglary and in the
Mobile County Circuit Court for second-degree possession of a
forged instrument. On December 9, 2014, the Parole Board
granted him parole subject to his submission of a
satisfactory home-and-job plan. See Doc. 13-1 at 6.
On May 7, 2015, the Parole Board sent Brooks a letter
informing him that the home-and-job plan he had submitted was
unsatisfactory and that he should submit another plan as soon
as possible. Doc. 13-1 at 11. Thereafter, Brooks submitted
another home-and-job plan. On July 10, 2015, the Parole Board
sent Brooks a letter notifying him that a hearing would be
held on September 3, 2015, at which the Board would consider
(1) whether the parole order entered on December 9, 2014 was
void; and (2) whether it was proper to grant parole. Doc.
13-1 at 12. On September 3, 2015, a hearing was held where
Brooks' parole was rescinded. Doc. 13-1 at 13. His next
parole consideration date was set for September 2018.
September 22, 2015, Brooks filed a petition for writ of
certiorari in the Circuit Court for Montgomery County
challenging the Parole Board's decision to rescind his
parole. Doc. 13-1 at 5-10. In his petition, Brooks
alleged that the Parole Board violated his due process rights
by rescinding his parole without first finding that its
previous order granting parole was improper. Doc. 13-1 at
9-10. He further alleged that the Parole Board violated his
right to equal protection because he was similarly situated
with individuals who had been granted parole and because the
Board rescinded its order granting parole based on his race
and religion. Doc. 13-1 at 8-10.
November 4, 2015, the circuit court entered an order
dismissing Brooks' petition for writ of certiorari. Doc.
13-1 at 40. Brooks appealed the decision to the Alabama Court
of Criminal Appeals,  and on March 24, 2016 that court issued a
memorandum opinion affirming the circuit court's
judgment. Doc. 13-5. Brooks' application for rehearing
was overruled on April 6, 2016. Docs. 13-6 & 13-7. Brooks
then filed a petition for certiorari review with the Alabama
Supreme Court. Doc. 13-10. That court denied the petition for
certiorari on July 8, 2016. Doc. 13-11.
filed this § 2254 petition on August 3, 2016, presenting
claims that, in rescinding his parole, the Parole Board (1)
violated his due process rights; (2) failed to comply with
its own rules and procedures and with “mandatory”
provisions of Alabama's parole statute; and (3) violated
his right to equal protection. Doc. 1 at 5-9.
reasons stated below, the Magistrate Judge recommends that
Brooks' § 2254 petition be denied and this action be
dismissed with prejudice.
Due Process Claim
claims that the Parole Board violated his due process rights
by rescinding his parole. Docs. 1 at 9 & 2 at 6-12.
However, there is no constitutional or inherent right of a
convicted person to be conditionally released before the
expiration of a valid sentence.” Greenholtz v.
Inmates of the Nebraska Penal & Corr. Complex, 442
U.S. 1, 7 (1979); see also Bd. of Pardons v. Allen,
482 U.S. 369, 377, n.8 (1987) (holding that a state has no
duty to establish a parole system or to provide parole for
all categories of convicted persons and that the state may
place conditions on parole release). While a petitioner may
have an expectation that he may someday be released or
paroled, the natural desire to be released is no different
from the initial resistance to be confined.
Greenholtz, 442 U.S. at 7. Once a valid conviction
has been entered, the petitioner has been constitutionally
deprived of his liberty right to be conditionally released
before the expiration of his sentence. Id.
law creates no liberty interest in a possible grant of parole
because its parole statute is framed in discretionary terms
and the parole of prisoners falls within the unfettered
discretion of the Parole Board. Thomas v. Sellers,
691 F.2d 487, 489 (11th Cir. 1982); see Monroe v.
Thigpen, 932 F.2d 1437, 1441 (11th Cir. 1991). Absent
the existence of a constitutionally protected liberty
interest in parole, “the procedures followed in making
the parole determination are not required to comport with the
standards of fundamental fairness.” O'Kelley v.
Snow, 53 F.3d 319, 321 (11th Cir. 1995); Slocum v.
Ga. St. Bd. of Pardons & Paroles, 678 F.2d 940, 942
(11th Cir. 1982). “Thus, the procedural due process
protections of the Fourteenth Amendment do not apply either
to the parole decision making process, or the parole
consideration process.” James-Bey v. Dillard,
2014 WL 896968, at *6 (M.D. Ala. 2014) (citations omitted).
Parole Board rescinded Brooks' parole before he was
released from prison. In Jago v. Van Curen, 454 U.S.
14 (1981), the Supreme Court held that even when a parole
board grants parole and adopts a specific parole date, the
understanding between the board and prisoner does not create
a protected liberty interest and that, until a prisoner has
actually been released, parole may still be rescinded without
implicating constitutional rights. Jago, 454 U.S. at
14-21. Because the Parole Board rescinded Brooks' parole
prior to his release from prison, the reasoning of
Jago is controlling in Brooks' case.
affirming the circuit court's dismissal of Brooks'
petition for writ of certiorari, the Alabama Court of
Criminal Appeals noted that the State of Alabama's parole
statute affords an inmate no liberty interest in the grant of
parole, and-applying Jago-the court held that
“[b]ecause Brooks had not been released from custody,
he did not have a liberty interest at stake” and thus
“he was not ...