Heard v. Georgia State Board of Pardons & Paroles , 222 F. App'x 838 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 13, 2007
No. 06-15038 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00985-CV-TCB-1
ALBERT HEARD,
Plaintiff-Appellant,
versus
GEORGIA STATE BOARD OF PARDONS AND PAROLES,
MR. MILTON E. (BUDDY) NIX,
and Members,
GARLAND R. HUNT,
Vice-Charman,
GARFIELD HAMMOND, JR.
MR. EUGENE P. WALKER,
MRS. L. GALE BUCKER,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 13, 2007)
Before ANDERSON, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Albert Heard, a Georgia state prisoner proceeding pro se, appeals the
dismissal, pursuant to 28 U.S.C. § 1915A, of his 42 U.S.C. § 1983 complaint for
failure to state a claim. He also appeals the district court’s denial of his motion for
reconsideration. For the following reasons, we affirm.
I. BACKGROUND
Although the record is not entirely clear, it appears that Heard is currently
serving concurrent twenty-year sentences for his 2000 and 2001 residential
burglary convictions. His latest possible release date—the date on which he would
be released if he served his entire sentence—is May 22, 2021. Heard filed a
§ 1983 action against members of the Georgia State Board of Pardons and Paroles
(the “Board”), in their official and individual capacities, seeking, inter alia,
compensatory damages, injunctive relief, and declaratory relief. In his complaint,
Heard alleged, in pertinent part, that the defendants violated the Constitution’s Due
Process and Ex Post Facto Clauses by retroactively applying a policy requiring him
to serve 90% of his sentence (the “90% policy”) before he could become eligible
for parole. After the Board denied Heard’s request to reevaluate his parole
eligibility date, Heard filed the instant § 1983 action.
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After performing the required screening under the Prison Litigation Reform
Act, 28 U.S.C. § 1915A, the district court sua sponte dismissed the complaint for
failure to state a claim upon which relief could be granted. Heard filed a motion
for reconsideration of the district court’s dismissal, reiterating the arguments in his
complaint and also contending that the court had failed to consider his claim that
O.C.G.A. § 42-9-45(f) mandated that he be paroled after serving one-third of his
sentence with a record of good behavior. The court denied his motion. Heard now
appeals.
II. DISCUSSION
A. Sua Sponte Dismissal Under § 1915A
We review de novo the sua sponte dismissal of a complaint under § 1915A.
Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Under § 1915A, the
district court is required to screen civil complaints filed by prisoners against
governmental officers or entities, and shall dismiss the complaint if it is frivolous,
fails to state a claim, or seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915A(a), (b)(1), (b)(2). A complaint fails to state a
claim when “it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Flint v. ABB, Inc., 337
F.3d 1326, 1328-29 (11th Cir. 2003). In screening a complaint under § 1915A, the
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district court is required to review the action and identify cognizable claims. See
28 U.S.C. § 1915A(b). In doing so, the court must pierce the veil of the complaint
and examine the underlying factual allegations. See Neitzke v. Williams, 490 U.S.
319, 327, 109 S. Ct. 1827, 1833, 104 L. Ed. 2d 338 (1989) (applying 28 U.S.C.
§ 1915(d)). All allegations in the complaint must be viewed as true. Brown v.
Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). “Pro se pleadings are held to a
less stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998). Nonetheless, federal courts have discretion to dismiss pro se claims if
they lack an arguable basis either in fact or in law. Nietzke, 490 U.S. at 324-25,
109 S.Ct. at 1831-32.
1. Due Process Claim
Establishment of a parole system does not automatically create a liberty
interest in parole; “[o]nly when a state maintains a parole system that creates a
legitimate expectation of parole does it [also] establish a liberty interest in parole
that is subject to the protections of the Due Process Clause.” Jones v. Ray, 279
F.3d 944, 946 (11th Cir. 2001). In Sultenfuss v. Snow, this court held that
Georgia’s parole system did not create such an expectation so that Georgia inmates
have no liberty interest in parole. Jones, 279 F.3d at 946 (citing Sultenfuss v.
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Snow, 35 F.3d 1494, 1502 (11th Cir. 1994) (en banc)). Moreover, it “is
well-settled that there is no federal constitutional right to parole.” Jones, 279 F.3d
at 946 (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,
7, 99 S. Ct. 2100, 2104, 60 L. Ed. 2d 668 (1979)). Where there is no liberty interest
in parole, “the procedures followed in making the parole determination are not
required to comport with standards of fundamental fairness.” O’Kelley v. Snow,
53 F.3d 319, 321 (11th Cir. 1995).
Under O.C.G.A. § 42-9-45(b), an inmate serving a felony sentence “shall
only be eligible for consideration for parole after” having served nine months of or
one-third of his sentence, whichever is greater. O.C.G.A. § 42-9-45(b) (emphasis
added). Under O.C.G.A. § 42-9-45(f), “no inmate serving a sentence imposed for
any of the crimes listed in this subsection shall be granted release on parole until
and unless said inmate has served on good behavior” seven years or one-third of
his prison sentence, whichever occurs first. O.C.G.A. § 42-9-45(f). Residential
burglary is not one of the crimes listed in O.C.G.A. § 42-9-45(f).1
On appeal, Heard challenges the dismissal of his due process claim on the
1
The enumerated offenses are: voluntary manslaughter, statutory rape, incest, cruelty to
children, arson in the first degree, homicide by vehicle while under the influence of alcohol or as
a habitual traffic violator, aggravated battery, aggravated assault, trafficking in drugs, and
violations of Chapter 14 of Title 16, the Georgia Racketeer Influenced and Corrupt
Organizations Act. O.C.G.A. § 42-9-45(f).
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grounds that: he was entitled to an evidentiary hearing in the district court before
the dismissal, the § 1915A frivolity review was not conducted by a magistrate
judge, and the district court’s decision was wrong on the merits.
As an initial matter, Heard’s contention that he was entitled to an evidentiary
hearing before the district court dismissed his complaint is without merit. Nothing
in the text of § 1915A requires a district court to grant such a hearing before sua
sponte dismissing an inmate’s complaint for failure to state a claim, and this court
has never held that such a requirement exists.
We likewise reject Heard’s contention that his due process rights were
violated because the § 1915A frivolity review was not conducted by a magistrate
judge. There is no authority in either § 1915A, the case law of the Supreme Court,
or the case law of this court supporting such a claim.
We also reject Heard’s contention that the district court erred on the merits
in dismissing his due process claim. As discussed above, Georgia inmates have no
liberty interest in parole, and there is no federal constitutional right to parole.
Jones, 279 F.3d at 946. Moreover, the Board has “significant discretion” in its
application of, and departure from, the Parole Decision Guidelines. Sultenfuss, 35
F.3d at 1501. And to the extent Heard argues that O.C.G.A. § 42-9-45(f) created a
liberty interest in parole, he is incorrect as, by its own terms, O.C.G.A. § 42-9-
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45(f) does not apply to inmates incarcerated for residential burglary.
Accordingly, even liberally construing Heard’s pro se complaint, we
conclude that the district court correctly dismissed Heard’s due process claim for
failure to state a claim upon which relief could be granted.
2. Ex Post Facto Claim
The Ex Post Facto Clause prohibits states from enacting statutes which
“make more burdensome the punishment for a crime, after its commission.”
United States v. De La Mata, 266 F.3d 1275, 1286 (11th Cir. 2001) (emphasis
added). Retroactive changes to laws governing the parole of prisoners may, in
some instances, violate the Ex Post Facto Clause. Garner v. Jones, 529 U.S. 244,
250, 120 S. Ct. 1362, 1267, 146 L. Ed. 2d 236 (2000). To prevail on an Ex Post
Facto Clause challenge concerning changes in parole procedures, a prisoner “must
show that as applied to his own sentence the law created a significant risk of
increasing his punishment.” Id. at 255, 120 S.Ct. at 1370.
Heard bases his ex post facto claim on a letter he received from the Board in
March of 2006. The letter stated that Heard’s original tentative parole month
(“TPM”) had been extended to May of 2011 and that a performance review hearing
was to be held in November of 2010. The letter further stated that Heard’s
previous “parole success likelihood score” and “crime severity level” had remained
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unchanged. On appeal, Heard argues that O.C.G.A. § 42-9-45(f) mandates that he
be paroled after serving one-third of his sentence with a record of good behavior.
He contends that the Board’s 90% policy was retroactively applied to his parole
eligibility determination (as evidenced by resetting his TPM) so that requiring him
to serve more than one-third of his sentence before he is paroled violates the Ex
Post Facto Clause. We disagree.
First, Heard’s contention that O.C.G.A. § 42-9-45(f) compels his actual
release on parole upon serving one-third of his sentence is erroneous. As stated
above, by its own terms, O.C.G.A. § 42-9-45(f) does not apply to Heard because he
is incarcerated for residential burglary. Moreover, O.C.G.A. § 42-9-45(f) does not
require the actual release of an inmate upon serving seven years or one-third of his
sentence on good behavior, rather, the statute provides that “no inmate”
incarcerated for certain enumerated offenses (which, again, do not include
residential burglary) shall be released on parole “until and unless” he has served
seven years or one-third of his sentence on good behavior. O.C.G.A. § 42-9-45(f).
Second, to the extent he claims that O.C.G.A. § 42-9-45(b) mandates his
release on parole after having served one-third of his sentence, Heard is also
incorrect. The relevant language of that statute states that “an inmate serving a
felony sentence or felony sentences shall only be eligible for consideration for
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parole after the expiration of nine months of his or her sentence or one-third of the
time of the sentences, whichever is greater.” O.C.G.A. § 42-9-45(b) (emphasis
added). The plain reading of this language is that Georgia inmates serving a felony
sentence must serve a minimum of nine months or one-third of their sentence. The
statute does not require the Board to actually release, or to even consider releasing,
an inmate on parole at a particular time.
Third, the 90% policy was never applied to Heard, retroactively or
otherwise. Heard’s TPM is May of 2011. Thus, he will become eligible for parole
consideration after serving approximately 50% of his 20-year sentence.
Heard is also incorrect to the extent he contends that the Board’s most recent
parole policy was retroactively applied to him. In November of 2005, the Board
adopted a new rule that replaces the 90% policy and applies only to those inmates
convicted on or after January 1, 2006. The new rule provides that inmates serving
sentences pursuant to one or more enumerated offenses (including residential
burglary) shall be assigned a crime-severity level of VIII, and, depending on their
“parole success likelihood score,” those inmates are required to serve either 90%,
75%, or 65% of their prison sentences. Ga. Comp. R. & Regs. 475-3-.05(7).
Because Heard will become parole eligible after having served approximately 50%
of his sentence and his crime-severity level has remained unchanged, we conclude
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that the Board’s latest policy has not been applied to him.
Accordingly, we conclude “beyond doubt” that Heard can prove no set of
facts establishing an Ex Post Facto Clause violation.
B. Denial of the Motion to Reconsider
We review a district court’s denial of a motion for reconsideration for abuse
of discretion. Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th
Cir. 2004). Heard agues that the district court abused its discretion by failing to
put forth any legal analysis or otherwise address the merits of his claims in denying
his motion for reconsideration. We disagree. As the district court concluded,
Heard’s motion merely reiterated the allegations in his complaint. And because we
conclude that the record supports the dismissal of Heard’s complaint for failure to
state a claim, the district court did not abuse its discretion in denying the motion
for reconsideration.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
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