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Massey v. Alabama Board of Pardons and Paroles

United States District Court, M.D. Alabama, Northern Division

January 30, 2019

CALVIN LEON MASSEY, # 155562, Petitioner,
v.
ALABAMA BOARD OF PARDONS AND PAROLES, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          STEPHEN M. DOYLE, UNITED STATES MAGISTRATE JUDGE

         Calvin Leon Massey, an Alabama inmate proceeding pro se, filed this petition for writ of habeas corpus under 28 U.S.C. § 2254 alleging that the Alabama Board of Pardons and Paroles (“Board”) acted unconstitutionally and in violation of the applicable statutory provisions in setting his initial parole consideration date. Doc. 1. After reviewing the pleadings, evidentiary materials, and relevant law, the court concludes that no evidentiary hearing is required and that Massey's petition should be denied.

         I. BACKGROUND

         Massey pleaded guilty in the Montgomery County Circuit Court to two counts of attempted murder, in violation of §§ 13A-4-2 & 13A-6-2, Ala. Code 1975. On April 5, 2012, that court sentenced Massey to concurrent terms of life in prison with the possibility of parole.

         After Massey began serving his sentence, the Board, applying the “85% or 15-year Rule” set out in its operating procedures, scheduled Massey's initial parole consideration for September 2025, i.e., 15 years into Massey's sentence (taking into account jail credit Massey had received). Article One, § 9, of the Board's Rules, Regulations, and Procedures contains the “85% or 15-year Rule” and provides:

Excluding those crimes committed prior to March 21, 2001, when an inmate is convicted of one or more of the following Class A felonies, the initial parole consideration date shall be set in conjunction with the inmate's completion of eighty-five (85) percent of his or her total sentence or fifteen (15) years, whichever is less, unless the designee finds mitigating circumstances: Rape I, Kidnapping I, Murder, Attempted Murder, Sodomy I, and Sexual Torture; Robbery I with serious physical injury, Burglary I with serious physical injury, and Arson I with serious physical injury. Serious physical injury in this paragraph is as defined in title 13A-1-2(14) of the Alabama Code.

Rules, Regulations, and Procedures of the Board of Pardons and Paroles (2012), Article One, § 9 (emphasis added). The Board used the “85% or 15-year Rule” to determine Massey's initial parole consideration date because Massey was convicted of attempted murder, a crime specifically listed in Article One, § 9.

         Effective January 30, 2016, Alabama's “Justice Reinvestment Act, ” Act No. 2015-85, amended portions of the State's parole statute, § 15-22-28-1 et seq., Ala. Code 1975. Among the changes effected by the Act was an amendment to language in § 15-22-28(e), Ala. Code 1975. Where that section previously provided that “[t]he board shall not grant a parole to any prisoner who has not served at least one third or 10 years of his sentence, whichever is the lesser, except by a unanimous affirmative vote of the board, ” § 15-22-28(e) as amended provides:

For violent offenses as defined in Section 12-25-32, the board shall not grant a parole to any prisoner who has not served at least one third or 10 years of his sentence, whichever is the lesser, except by a unanimous affirmative vote of the board.

§ 15-22-28(e), Ala. Code 1975 (2016). Although post-amendment § 15-22-28(e) applies expressly to violent offenses, while pre-amendment § 15-22-28(e) was not limited to violent offenses, it is undisputed that Massey's convictions for attempted murders constitute violent offenses as defined in § 12-25-32, Ala. Code 1975.[1]

         In February 2016, shortly after the Justice Reinvestment Act went into effect, Massey filed a petition for writ of certiorari in the Circuit Court of Montgomery County, [2]arguing that (1) the Act effectively repealed the Board's “85% or 15-year Rule”; (2) § 15-22-28(e) as amended supplants the “85% or 15-year Rule” as the standard for determining when an inmate is entitled to an initial parole consideration, which in his case should be set at one third or 10 years of his sentence, whichever is less; (3) the Board contravened the provisions of § 15-22-28(e) and arbitrarily and capriciously used the “85% or 15-year Rule” to determine his initial parole consideration date; and (4) the Board's use of the “85% or 15-year Rule” in his case violated his right to equal protections under the laws. Doc. 13-1 at 4-16.

         The Board moved to dismiss Massey's petition for certiorari, arguing that Massey's claims were without merit. Doc. 13-1 at 24-32. On March 10, 2016, the state circuit court entered an order summarily dismissing Massey's petition for certiorari. Doc. 13-1 at 54.

         Massey appealed, and on July 1, 2016, the Alabama Court of Criminal Appeals issued a memorandum opinion affirming the lower court's judgment. Doc. 13-5. Massey applied for rehearing, which was overruled on July 29, 2016. Docs. 13-6 & 13-7. Massey then filed a petition for writ of certiorari with the Alabama Supreme Court, which that court denied on September 16, 2016. See Docs. 13-10 & 13-11.

         Massey initiated the instant habeas action on October 21, 2016. In his § 2254 petition, Massey essentially reasserts the claims he presented in the state courts, arguing that § 15-22-28(e) as amended supplants the “85% or 15-year Rule” as the standard for determining when an inmate is entitled to an initial parole consideration and that the Board's use of the “85% or 15-year Rule” to determine his initial parole consideration date contravened the provisions of § 15-22-28(e) and violated his right to equal protection. Docs. 1 & 1-1.

         II. ...


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