Burnett v. Fallin

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 22, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
STEPHEN CRAIG BURNETT,
Plaintiff - Appellant,
v. No. 17-6141
(D.C. No. 5:17-CV-00392-M)
MARY FALLIN, Governor of Oklahoma, (W.D. Okla.)
in her official capacity, and in her
individual capacity; PATRICIA HIGH, in
her individual capacity; ROBERT MACY,
member of the Pardon and Parole Board, in
his official capacity, and in his individual
capacity; THOMAS C. GILLERT, member
of the Pardon and Parole Board, in his
official capacity, and in his individual
capacity; WILLIAM LATIMER, in his
individual capacity; VANESSA PRICE, in
her individual capacity; ERIKA DENTON,
Parole Investigator for Pardon and Parole
Board, in her official capacity, and in her
individual capacity C. ALLEN McCALL,
member of the Pardon and Parole Board, in
his official capacity; MICHAEL STEELE,
member of the Pardon and Parole Board, in
his official capacity; ROBERTA
FULLERTON, member of the Pardon and
Parole Board, in her official capacity, ∗
Defendants - Appellees.
_________________________________
∗
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), C. Allen McCall,
Michael Steele, and Roberta Fullerton, current members of the Oklahoma Pardon and
Parole Board, are automatically substituted for Patricia High, William Latimer, and
Vanessa Price in their official capacities as former members of the Oklahoma Pardon
and Parole Board.
ORDER AND JUDGMENT**
_________________________________
Before BRISCOE, KELLY, and McHUGH, Circuit Judges.
_________________________________
Stephen Craig Burnett is an Oklahoma prisoner serving a sentence of life with
the possibility of parole. Mr. Burnett filed a complaint under 42 U.S.C. § 1983,
asserting that changes in Oklahoma’s parole process violated his rights under the Due
Process Clause, the Ex Post Facto Clause, and the Eighth Amendment. The district
court dismissed Mr. Burnett’s complaint based on a failure to state a claim upon
which relief can be granted and as barred by Heck v. Humphrey, 512 U.S. 477 (1994).
On appeal, Mr. Burnett argues he pleaded sufficient facts to allow the inference that,
for all intents and purposes, changes in the parole process converted his sentence of
life with the possibility of parole into a sentence of life without the possibility of
parole. Mr. Burnett further argues the relief requested in his complaint did not
include speedier release, thus placing his claims outside the contours of the Heck-bar.
We conclude Mr. Burnett’s complaint fails to allege facts capable of
supporting a due process, ex post facto, or Eighth Amendment claim. And because
Mr. Burnett’s complaint does not state a claim upon which relief can be granted, we
affirm the district court’s judgment without deciding whether Heck bars any of
Mr. Burnett’s claims.
**
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
2
I. BACKGROUND
A. Mr. Burnett’s Imprisonment & the Oklahoma Parole System
In 1994, Mr. Burnett pleaded guilty to first-degree murder and automobile
larceny charges. The charges stemmed from Mr. Burnett shooting his wife after he
learned she was having an affair, placing her body in the trunk of a car, driving the
car to Texas, and fleeing to the Philippines. In accord with the terms of the plea
agreement, Mr. Burnett received a sentence of life with the possibility of parole on
the first-degree murder conviction. 1
Oklahoma’s parole system is two tiered, with the Pardon and Parole Board
(“Parole Board”) acting as an initial gatekeeper and the Governor having the ultimate
authority and responsibility for granting or denying parole relative to those inmates
for whom the Parole Board issues a favorable recommendation. See Okla. Stat. tit.
57, § 332.16. At the time of Mr. Burnett’s offense, the statute establishing parole
criteria stated, in pertinent part:
[I]t shall be the duty of the Pardon and Parole Board to cause an
examination to be made at the penal institution where the person is
assigned, and to make inquiry into the conduct and the record of the said
person during his custody in the Department of Corrections, which shall
be considered as a basis for consideration of said person for
recommendation to the Governor for parole.
Okla. Stat. tit. 57, § 332.7(A) (West 1993). With the exception of prospective
parolees “convicted of three or more felonies arising out of separate and distinct
1
Mr. Burnett received a fifteen-year sentence on the automobile larceny
conviction, to run consecutively with his sentence on the first-degree murder
conviction.
3
transactions, with three or more incarcerations for such felonies,” the then-governing
statute was silent as to whether the Parole Board should consider an individual’s
offense of conviction or criminal history. See Okla. Stat. tit. 57, § 332.7 (West 1993).
As Mr. Burnett committed his offense before July 1, 1998, he became eligible
for consideration for parole upon the completion of one-third of his sentence. See
Okla. Stat. tit. 57, § 332.7(A) (West 2004). Where a defendant is serving a life
sentence, his sentence is treated as a forty-five-year sentence for purposes of the one-
third requirement in title 57, section 332.7(A) of the Oklahoma Statutes. See
Anderson v. State, 130 P.3d 273, 282 (Okla. Crim. App. 2006) (citing Okla. Pardon &
Parole Bd. Policy 004 I.A.3.a.). Thus, the Parole Board deemed Mr. Burnett first
eligible for parole on his life sentence in 2010. 2 Lisa Reading, a parole investigator,
drafted a report to the Parole Board that detailed Mr. Burnett’s offense conduct, his
prison disciplinary record, and his work history. Although Ms. Reading assigned Mr.
Burnett a “[r]isk score: 1 (Low),” she recommended denying parole based on Mr.
Burnett’s history of prison misconduct reports. Suppl. ROA at 15. The Parole Board
adopted the recommendation and denied parole.
The Parole Board next considered Mr. Burnett for parole in 2013. 3 Erika
2
A grant of parole on the life sentence would not have resulted in Mr.
Burnett’s release; rather, it would have permitted Mr. Burnett to commence service
on his fifteen-year automobile larceny sentence. See Okla. Stat. tit. 57, § 332.7(H).
3
Subsequent to Mr. Burnett’s offense, the frequency of parole hearings
changed. Prior to Mr. Burnett’s offense, reconsideration of parole occurred “one year
from the month of denial, unless directed otherwise by majority vote” with the parole
board having the authority to “set off reconsideration for a maximum of five years.”
4
Denton 4 served as the parole investigator and submitted a report to the Parole Board
in October 2013. Like the 2010 report, the October 2013 report detailed the facts of
Mr. Burnett’s offense; outlined Mr. Burnett’s prison disciplinary record, work
performance in prison, and participation in prison programs; and provided a risk
assessment. Ms. Denton assigned Mr. Burnett a total risk score of negative 2 and an
overall risk level of low. Focusing on his recent conduct in prison, Ms. Denton
recommended parole, stating: “Yes. Parole to the [consecutive sentence] case is
recommended. Offender has spent 20 years of this sentence and has maintained clear
conduct for over 3 years. When he was able to work his evaluations were excellent to
outstanding.” Suppl. ROA at 19; ROA at 12.
In November 2013, new criteria governing parole took effect. The new criteria
require the Parole Board to “consider the prior criminal record of inmates under
consideration for parole recommendation or granting of parole.” Okla. Stat. tit. 57,
§ 332.7(I). In December 2013, the Parole Board rejected the favorable
recommendation in the October 2013 report and denied parole without explanation.
The Parole Board next considered Mr. Burnett for parole in 2016, with Ms. Denton
again serving as the parole investigator. Like the previous reports, the 2016 report
Henderson v. Scott, 260 F.3d 1213, 1214 n.2 (10th Cir. 2001) (quoting Okla. Pardon
& Parole Bd., Policy & Procedures Manual, Policy 004(I)(B)(1)(a)). A 1999 statutory
amendment, however, now precludes reconsideration of parole for at least three years
from a denial of parole for any person convicted of a violent crime. Okla. Stat. tit. 57,
§ 332.7(D)(1) (West 1999). This three-year limitation on the reconsideration of a
denial of parole remains in effect. Okla. Stat. tit. 57, § 332.7(D)(1).
4
At the time of her October 2013 report, Ms. Denton was Ms. Dunigan.
5
detailed the facts of Mr. Burnett’s offense and summarized his prison disciplinary
record, work performance in prison, and participation in prison programs. Unlike the
previous reports, however, the 2016 report did not include a risk assessment. And,
also unlike the previous reports, the recommendation in the 2016 report focused on
the nature of Mr. Burnett’s offense, not his conduct in prison. Specifically, in
recommending against parole, Ms. Denton wrote: “No, parole is not recommended
due to the heinous nature of the crime. Offender not only killed his wife, but put her
body in the trunk of a car not to be found for days. After the murder, he fled the
country in hopes of never being caught.” Suppl. ROA at 22; ROA at 12. The Parole
Board denied parole, again without providing an explanation. Mr. Burnett’s next
opportunity for parole consideration is scheduled for December 2019.
B. Mr. Burnett’s Complaint
Following the 2016 denial of parole, Mr. Burnett filed a three-count complaint
pursuant to 42 U.S.C. § 1983. Mr. Burnett named Governor Mary Fallin, the five
members of the Parole Board, and Ms. Denton as defendants. 5 In count one, Mr.
Burnett raised a procedural and substantive due process claim, alleging the changes
in the statutory scheme governing the parole process converted his sentence of life
with the possibility of parole into a sentence of life without the possibility of parole
5
Mr. Burnett named all defendants in both their individual and official
capacities.
6
and violated the terms of his plea agreement. 6 In count two, Mr. Burnett raised an Ex
Post Facto Clause challenge to the retroactive application of parole procedures
adopted after he committed his offense, focusing on an as applied challenge rather
than a facial challenge. In count three, Mr. Burnett raised an Eighth Amendment
claim, alleging the denial of parole had a “devastating affect [sic] on his mental state
of mind” and caused him to suffer depression, severe headaches, loss of sleep, and
stomach pain. 7 ROA at 16–17. Mr. Burnett sought money damages, declaratory relief
in the form of an order stating that application of the new parole procedures violated
his constitutional rights, and injunctive relief requiring the Parole Board to apply the
1993 procedures at future parole hearings. Mr. Burnett, however, specifically
disclaimed any attempt to obtain an order from the federal court granting him
clemency, parole, or release from prison.
C. Dismissal of Complaint & Arguments on Appeal
6
Although the allegations in support of this claim focused primarily on the
requirement that the Parole Board must now consider his offense of conviction and
offense conduct, Mr. Burnett identified seven other changes in the parole process: (1)
he is no longer permitted to personally appear before the Parole Board; (2) he no
longer can be transferred to a lower security prison facility; (3) victims are permitted
to object to parole; (4) he has to prove that he has a job and a place to live upon
release; (5) the Oklahoma Department of Corrections (“ODOC”) no longer maintains
records on inmate accomplishments; (6) the ODOC no longer conducts a “risk
assessment” as part of the parole investigation report; and (7) parole hearings occur
less frequently.
7
In the alternative, Mr. Burnett indicated the allegations in count three raised a
state-law claim for intentional infliction of emotional distress.
7
A magistrate judge screened Mr. Burnett’s complaint pursuant to 28 U.S.C.
§§ 1915(e), 1915A and recommended dismissing all three claims and assigning Mr.
Burnett a strike under the Prison Litigation Reform Act (“PLRA”). Relative to the
issues argued on appeal, the magistrate judge concluded: (1) Heck barred Mr. Burnett
from recovering money damages on his due process claim; (2) Mr. Burnett failed to
state a due process claim because there is no Fourteenth Amendment liberty interest
in parole; (3) Mr. Burnett failed to state an ex post facto claim because any increase
in punishment from the changes in the parole process was “speculative” and
“attenuated”; and (4) Mr. Burnett failed to state an Eighth Amendment claim because
his allegations were “amorphous” and did not allege a significant risk of harm to
personal safety. 8 Over Mr. Burnett’s objections, the district court adopted the report
and recommendations, dismissed Mr. Burnett’s action, and assigned Mr. Burnett a
strike under the PLRA.
Through a pro se opening brief, Mr. Burnett challenged the dismissal of each
of his three claims for relief, as well as the assignment of a strike under the PLRA.
This court appointed Mr. Burnett counsel. Through counsel, Mr. Burnett argued his
8
The magistrate judge also faulted Mr. Burnett for not producing “evidence”
in support of his ex post facto claim. ROA at 34–36. As the case was only at the
pleadings stage, Mr. Burnett did not have an opportunity to present evidence, and the
magistrate judge’s statement on this point was clearly erroneous. Furthermore,
although Mr. Burnett objected to the magistrate judge’s conclusion on this point, the
district court did not address this objection and adopted the magistrate judge’s report
and recommendation without modification and without considering any of Mr.
Burnett’s other objections. See 28 U.S.C. § 636 (“A judge of the court shall make a
de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.”).
8
claims were not barred by Heck and his complaint alleged sufficient facts to advance
a due process claim and an ex post facto claim. On the sufficiency of the pleadings
issue, Mr. Burnett argues he has a due process interest in the state abiding by the plea
agreement and that the changes in the parole process amount to a breach of the plea
agreement. In response, Appellees (1) argue the plea agreement did not contain a
promise of a fixed set of parole criteria, only an opportunity to be considered for
discretionary parole; and (2) repeat the magistrate judge’s conclusion that a prisoner
does not have a liberty interest in the parole process. Turning to the ex post facto
claim, Mr. Burnett argues factual development through discovery might result in
evidence showing that, as applied, the new parole process presents a significant risk
of increasing the duration of his imprisonment. In response, Appellees argue Mr.
Burnett cannot show a significant risk of an increased duration of incarceration under
the new parole process because (1) nothing prevented the Parole Board from
considering his criminal history under the 1993 statute; (2) a favorable
recommendation by the Parole Board does not mean Mr. Burnett would be paroled as
the governor might reject the recommendation; and (3) Mr. Burnett’s complaint
contains allegations that defeat his claim, in that he alleges the governor would reject
any favorable recommendation by the Parole Board regardless of the criteria it used.
II. DISCUSSION
A. Standard of Review
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain ‘a
short and plain statement of the claim showing that the pleader is entitled to relief.’”
9
Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). “Dismissal for
failure to state a claim is a legal question we review de novo.” Young v. Davis, 554
F.3d 1254, 1256 (10th Cir. 2009). This remains the case where the dismissal is the
result of a district court screening a complaint pursuant to 28 U.S.C.
§§ 1915(e), 1915A rather than a dismissal following a Federal Rule of Civil
Procedure 12(b)(6) motion. See id. (discussing standard of review in context of
§§ 1915(e), 1915A dismissal). When reviewing the sufficiency of the pleadings for
purposes of Rule 8(a), “[w]e must accept all the well-pleaded allegations of the
complaint as true and must construe them in the light most favorable to the plaintiff.”
Id. (quotation marks omitted). To avoid dismissal, “a complaint must contain enough
allegations of fact . . . ‘to state a claim to relief that is plausible on its face.’” Khalik,
671 F.3d at 1190 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Finally, “we must construe a pro se appellant’s complaint liberally” and “[d]ismissal
of a pro se complaint for failure to state a claim is proper only where it is obvious
that the plaintiff cannot prevail on the facts he has alleged and it would be futile to
give him an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217, 1218 (10th
Cir. 2007) (quotation marks omitted).
B. Due Process Clause Claim
Mr. Burnett’s complaint can be liberally construed as raising two claims under
the Due Process Clause: (1) he has a standalone due process right with respect to the
procedures used at his parole hearings and (2) his due process rights were violated
10
because application of the new parole procedures breaches his plea agreement. 9 We
consider each potential claim in turn. Concluding that neither set of allegations states
a plausible violation of the Due Process Clause, we affirm the district court’s
dismissal of count one of Mr. Burnett’s complaint.
1. Changes in Parole Process
The Due Process Clause of the Fourteenth Amendment states, in pertinent part,
“nor shall any State deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. “‘To determine whether due process
requirements apply in the first place, we must look not to the “weight” but to the
nature of the interest at stake.’” Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7 (1978) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 570–71
(1972)). In accord with the language of the Fourteenth Amendment, “[t]he Due
Process Clause applies when government action deprives a person of liberty or
property.” Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir. 1994) (quoting Greenholtz,
442 U.S. at 7). “A liberty interest may arise from the Constitution itself, by reason of
guarantees implicitly in the word ‘liberty,’ or it may arise from an expectation or
interest created by state laws or policies.” Straley v. Utah Bd. of Pardons, 582 F.3d
1208, 1212 (10th Cir. 2009) (quoting Wilkinson v. Austin, 545 U.S. 209, 221 (2005)).
9
Although Mr. Burnett’s counsel focuses exclusively on the latter of these two
Due Process Clause arguments, Mr. Burnett raised the former argument in his pro se
opening brief. See Pro Se Opening Br. at 7 (“While actually being paroled is
discretionary, prisoners do have a legal right to be considered for parole, and via a
scheme that does not violate procedural and/or substantive due process.”). Because
counsel’s brief is a supplemental opening brief, arguments raised in Mr. Burnett’s pro
se brief are properly before us.
11
“The extent of the due process protection for prisoners . . . is significantly less than
that guaranteed to free persons.” Id.The question of whether a prisoner has a liberty interest in parole is well-
settled, with courts concluding that a liberty interest generally does not arise. See
Greenholtz, 442 U.S. at 7 (“There is no constitutional or inherent right of a convicted
person to be conditionally released before the expiration of a valid sentence . . . .
[T]he conviction, with all its procedural safeguards, has extinguished that liberty
right. . . .”); id. (“[T]here simply is no constitutional guarantee that all executive
decisionmaking must comply with standards that assure error-free determinations.”);
Straley, 582 F.3d at 1214 (“[T]he mere existence of a purely discretionary parole
authority creates no entitlement and, therefore, no concomitant federal due process
interest.”); Malek, 26 F.3d at 1015 (“Not only is there no constitutional or inherent
right to receive parole prior to the expiration of a valid sentence, but, absent state
standards for the granting of parole, decisions of a parole board do not automatically
invoke due process protections.” (citing Greenholtz, 442 U.S. at 7–8)). An exception
to this general rule against the existence of a liberty interest exists where a state’s
parole statute “sufficiently limits the discretion of a parole board” such that “a
prisoner has a legitimate claim of entitlement to [parole].” Straley, 582 F.3d at 1212–
13. A recognized example of such an exception is when a state statute makes parole
mandatory rather than discretionary. See id. at 1213.
Here, the 1993 version of title 57, section 332.7 of the Oklahoma Statutes
established a discretionary parole scheme that did not sufficiently limit the Parole
12
Board’s discretion so as to convey upon Mr. Burnett a liberty interest in parole.
Although the 1993 version of § 332.7 required the Parole Board to consider the
prospective parolee’s conduct in prison, this consideration was “a basis for
consideration of said person for recommendation to the Governor for parole.” Okla.
Stat. tit. 57, § 332.7(A) (West 1993) (emphasis added). Based on our construction of
§ 332.7, implicit in the emphasized language was the Parole Board’s ability to, as an
individual case might warrant, consider other relevant factors. Furthermore, the 1993
version of § 332.7 placed no limitations on the governor’s exercise of her authority to
grant or deny parole. Accordingly, where the governing state statute placed no
meaningful limitations on the Parole Board’s or the governor’s discretion to deny
parole, Mr. Burnett cannot establish a “legitimate claim of entitlement to [parole],”
see Straley, 582 F.3d at 1213 (emphasis added), and cannot state a due process claim
based solely and independently on the changes in the parole process.
2. Breach of Plea Agreement
“Interpreting the terms of a plea bargain involves a two-step process. The court
must first examine the nature of the prosecutor’s promise. Next, the court examines
this promise based upon the defendant’s reasonable understanding upon entry of the
guilty plea.” Cunningham v. Diesslin, 92 F.3d 1054, 1059 (10th Cir. 1996) (citation
omitted). “[W]hen a plea rests in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971).
“If the government breaches express or implied terms of a plea agreement, a violation
13
of due process occurs.” Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir. 2000)
(quoting United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994)).
Mr. Burnett’s allegations on this matter boil down to three contentions: (1) he
entered into a plea for a sentence of life with the possibility of parole; (2) it was his
understanding, based on the advice of plea counsel, that he would not spend the rest
of his life in prison; and (3) the changes in parole process greatly diminish his
prospects for parole such that his sentence is effectively a life without parole
sentence. For three reasons, Mr. Burnett’s allegations fail to state a plausible due
process claim based on a breach of his plea agreement.
First, Mr. Burnett fails to allege his plea agreement promised him a fixed set of
parole criteria. In this respect, Mr. Burnett’s complaint suffers from the same
deficiency from which the breach-of-plea claim in Cunningham suffered. There, Mr.
Cunningham alleged the state breached his plea agreement when the parole board
reinterpreted state statutes governing parole so as to render parole in his case
discretionary rather than mandatory. Cunningham, 92 F.3d at 1056–57. As a result,
rather than automatically being paroled after eight-and-a-half years’ imprisonment,
Mr. Cunningham gained only parole eligibility and faced the possibility of having to
serve his full seventeen-year term. See id. Although recognizing the gravity of the
change from mandatory to discretionary parole relative to the execution of
Mr. Cunningham’s term of imprisonment, this court concluded the state did not
breach the plea agreement because “mandatory parole was not a part of the plea offer
[and] [Mr.] Cunningham does not now allege to the contrary.” Id. at 1059; see also
14
Lustagarden v. Gunter, 966 F.2d 552, 554–55 (10th Cir. 1992). Here, Mr. Burnett
does not allege his plea agreement contained a provision that explicitly promised him
a fixed set of parole procedures and criteria. And, as this court in Cunningham did
not read the then-in-effect mandatory parole scheme into Mr. Cunningham’s plea
agreement despite the grave effect of the change on Mr. Cunningham’s ability to
obtain parole, we see no reason to read a fixed parole process into Mr. Burnett’s plea
agreement where the change may have no impact on Mr. Burnett’s ability to obtain
parole. Thus, any post-plea amendment to § 332.7 did not violate a term of Mr.
Burnett’s plea agreement.
Second, in explicitly conceding the discretionary nature of parole in Oklahoma
and the governor’s crucial role in both appointing members to the Parole Board and
reviewing any favorable parole recommendations, Mr. Burnett implicitly concedes it
was foreseeable at the time of his plea that the views of key individuals in the parole
process might change. Cf. Garner v. Jones, 529 U.S. 244, 253 (2000) (“[W]e can say
with some assurance that where parole is concerned[,] discretion, by its very
definition, is subject to changes in the manner in which it is informed and then
exercised. The idea of discretion is that it has the capacity, and the obligation, to
change and adapt based on experience.”). As such, in the absence of the plea
agreement directly speaking in favor of a fixed parole process, Mr. Burnett cannot
plausibly allege that he reasonably understood the plea agreement to contain a
promise of a fixed parole process.
15
Third, while Mr. Burnett challenges the applicability of the requirement in
§ 332.7(I) that the Parole Board must consider his offense of conviction, nothing in
the regulations at the time of plea agreement precluded the Parole Board from
considering this information. Tellingly, the pre-amendment form of § 332.7(A)
instructed the Parole Board to examine the prisoner’s conduct during confinement “as
a basis for consideration,” thereby anticipating that the Parole Board would also
assess other relevant factors. In fact, although § 332.7(I) did not take effect until
November 2013, the 2010 and October 2013 parole investigations reports placed
information about the offense of conviction, as well as Mr. Burnett’s offense
conduct, in front of the Parole Board. And, where this information was before the
Parole Board prior to § 332.7(I) taking effect, the Parole Board was aware of and
able to consider Mr. Burnett’s offense of conviction and offense conduct. Thus, even
assuming Mr. Burnett believed, when entering his plea agreement, that the parole
process would remain generally unchanged, it is not apparent from his allegations
that the addition of § 332.7(I) significantly alters the parole process. This is
particularly true when considered in light of (1) the consistent practice of informing
the Parole Board of the offense of conviction and the offense conduct; and (2) the
two-tiered parole system in Oklahoma, which has never placed limitations on the
governor’s authority and discretion to approve or deny a favorable recommendation
by the Parole Board.
Accordingly, because Mr. Burnett does not allege that his plea agreement
included an express provision guaranteeing him a fixed set of parole criteria, because
16
parole was always discretionary in Oklahoma, and because § 332.7(I) and the other
changes identified in Mr. Burnett’s complaint do not significantly alter the parole
process, Mr. Burnett fails to allege a plausible due process claim based on an alleged
breach of his plea agreement.
C. Ex Post Facto Clause Claim
1. Governing Law
Article I Section 10 of the United States Constitution “forbids . . . the States to
enact any law ‘which imposes a punishment for an act which was not punishable at
the time it was committed; or imposes additional punishment to that then
prescribed.’” Weaver v. Graham, 450 U.S. 24, 28 (1981) (emphasis added) (quoting
Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325–26 (1867)). “[T]wo critical
elements must be present for a criminal or penal law to be ex post facto: it must be
retrospective, that is, it must apply to events occurring before its enactment, and it
must disadvantage the offender affected by it.” Id. at 29 (citations omitted). Relative
to the second part of the analysis, “the question of what legislative adjustments ‘will
be held to be of sufficient moment to transgress the [ex post facto] prohibition’ must
be a matter of ‘degree.’” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995)
(quoting Beazell v. Ohio, 269 U.S. 167, 171 (1925)). A change in law producing only
“the most speculative and attenuated possibility” of increasing the length of
punishment does not violate the prohibition on ex post facto laws. Id. Instead, the
change in law must “produce[] a sufficient risk of increasing the measure of
punishment.” Id. The Supreme Court, however, has affirmatively recognized that
17
“[r]etroactive changes in laws governing parole of prisoners, in some instances, may
be violative of [the ex post facto] precept.” Garner, 529 U.S. at 250.
A plaintiff may raise either a facial or an as applied challenge under the Ex
Post Facto Clause. See id. at 255 (“When the rule does not by its own terms show a
significant risk, the respondent must demonstrate, by evidence drawn from the rule’s
practical implementation by the agency charged with exercising discretion, that its
retroactive application will result in a longer period of incarceration than under the
earlier rule.”). “Whether a particular law retroactively increases a criminal
punishment is often a close question” because whether the risk of increased
punishment rises to the level of a significant risk, rather than only a speculative and
attenuated risk, often involves a fact-specific inquiry. Lynce v. Mathis, 519 U.S. 433,
450 (1997) (Thomas, J., concurring in part and concurring in the judgment); see also
Garner, 529 U.S. at 250 (“Whether retroactive application of a particular change in
parole law respects the prohibition on ex post facto legislation is often a question of
particular difficulty when the discretion vested in a parole board is taken into
account.”). To answer this close question, a court should consider “the general
operation of the . . . parole system.” Garner, 529 U.S. at 255.
2. Analysis
a. Retrospective application
Mr. Burnett pleaded sufficient facts to satisfy the first element of an ex post
facto claim. Simply put, the adoption of § 332.7(I) occurred after Mr. Burnett
committed his offense (and after he pleaded guilty), yet the provision applies to his
18
parole consideration. Thus, whether Mr. Burnett pleaded sufficient facts to advance
an ex post facto claim rises and falls on the second element of that claim.
b. Sufficient risk of increased punishment
In his complaint, Mr. Burnett alleged the change in criteria had a clear impact
on the recommendation in Ms. Denton’s 2016 parole investigation report in that she
recommended parole prior to the adoption of § 332.7(I) but recommended against
parole after its adoption. Mr. Burnett further alleged the change in criteria resulted in
ODOC and the parole investigator no longer including a risk assessment in the report
to the Parole Board, an assessment favorable to his parole prospects. And a liberal
construction of Mr. Burnett’s complaint might allow for the inference that, prior to
the 2013 amendment to § 332.7, the Parole Board’s primary focus in denying or
recommending parole was on an inmate’s conduct in prison.
The aforementioned allegations might be sufficient to plead a sufficient risk of
increased punishment if the Parole Board possessed final authority to grant parole.
As discussed above, however, Oklahoma’s parole system is two-tiered, with the
governor having ultimate discretionary authority over whether Mr. Burnett is granted
parole. And Mr. Burnett’s complaint does not include any allegation that the
likelihood of the governor granting parole changed as a result of the adoption of
§ 332.7(I) or any other change in the parole procedures.
To the contrary, Mr. Burnett alleged Governor Fallin “championed a ‘tough on
crime’ agenda”; “made it clear in public media that she will not sign parole approval
for any violent offender”; and “appointed members [to] the [Parole] Board who are
19
all either former law enforcement officers or a Judge,” all with the goal of limiting
the prospects of an inmate obtaining parole. ROA at 11. As Governor Fallin
possesses ultimate discretion to grant or deny parole following a favorable
recommendation by the Parole Board, these allegations about Governor Fallin
preclude the inference that there is a sufficient likelihood that a favorable
recommendation by the Parole Board would result in Mr. Burnett actually receiving
parole.
When the complaint is read on the whole and in light of the two-tiered parole
review system in Oklahoma, Mr. Burnett has not pleaded sufficient facts to plausibly
allege that the adoption of § 332.7(I), or any other change in the parole process,
created a sufficient risk of increasing his incarceration on his first-degree murder
conviction. Rather, taking Mr. Burnett’s allegations as true, Governor Fallin’s views
on crime and parole are a “but for” cause of Mr. Burnett’s continued incarceration
regardless of the criteria used by the Parole Board when making parole suitability
recommendations. Accordingly, Mr. Burnett’s complaint fails to plead facts capable
of plausibly supporting the second element of his ex post facto claim, and we affirm
the district court’s dismissal of this claim.
D. Eighth Amendment Claim 10
10
Although counsel did not advance an argument relative to the dismissal of
Mr. Burnett’s Eighth Amendment claim, Mr. Burnett challenged the dismissal of this
claim in his pro se opening brief. Pro Se Opening Br. at 3, 13. Accordingly, we
consider the matter.
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“Because ‘only the unnecessary and wanton infliction of pain implicates the
Eighth Amendment,’ a prison official must act with ‘deliberate indifference to inmate
health or safety’ to violate the inmate’s constitutional rights.” Castillo v. Day, 790
F.3d 1013, 1020 (10th Cir. 2015) (quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994)). As a result, a claim for “[d]eliberate indifference has both an objective and a
subjective component.” Id. “The objective prong of the deliberate indifference test
examines whether the prisoner’s medical condition was sufficiently serious to be
cognizable under the Cruel and Unusual Punishment Clause.” Al-Turki v. Robinson,
762 F.3d 1188, 1192 (10th Cir. 2014) (internal quotation marks omitted). “To prevail
on the subjective component, the prisoner must show that the defendant knew the
prisoner faced a substantial risk of harm and disregarded that risk[] by failing to take
reasonable measures to abate it.” Castillo, 790 F.3d at 1021 (emphasis added)
(quotation marks omitted).
Mr. Burnett alleged the denial of parole amounted to deliberate indifference
because it had a “devastating affect [sic] on his mental state of mind” and caused him
to suffer depression, severe headaches, loss of sleep, and stomach pain. ROA at 16–
17. Mr. Burnett’s complaint, however, does not contain any allegations that he
reported his symptoms to anyone at his facility of confinement, no less any of the
named defendants. Nor does Mr. Burnett allege that any of the named defendants
attempted to deny him treatment for his symptoms. Accordingly, even if his alleged
symptoms amount to a serious medical condition for purposes of the objective
component of an Eighth Amendment claim, Mr. Burnett fails to plead any allegations
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relative to the subjective component of an Eight Amendment deliberate indifference
claim. Therefore, we affirm the district court’s dismissal of Mr. Burnett’s Eighth
Amendment claim.
E. Assignment of Strike & In Forma Pauperis Status
Section 1915(g) of Title 28 creates the three-strikes rule for prisoners
proceeding in forma pauperis and states:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
“When an action or appeal is dismissed as frivolous, as malicious, or for failure to
state a claim under 28 U.S.C. § 1915(e)(2)(B), the dismissal counts as a strike.”
Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir. 2011). Whether a
dismissal for failure to state a claim is with or without prejudice is “immaterial” to
the three-strikes analysis because the dismissal counts as a strike either way. Childs
v. Miller, 713 F.3d 1262, 1266 (10th Cir. 2013).
In affirming the district court’s dismissal of Mr. Burnett’s complaint, we must
affirm the district court’s assignment of a strike. However, after a careful review of
the arguments on appeal, we conclude that, although Mr. Burnett did not prevail, he
raised non-frivolous arguments for reversing the district court’s judgment such that
we do not assign him a strike relative to this appeal. And, because Mr. Burnett raised
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non-frivolous arguments on appeal, we grant his motion to proceed in forma
pauperis. 11 See 28 U.S.C. § 1915.
III. CONCLUSION
We AFFIRM the district court’s dismissal of Mr. Burnett’s complaint, under
28 U.S.C. §§ 1915(e), 1915A, for failure to state a claim upon which relief can be
granted. We further AFFIRM the district court’s assignment of a strike relative to
the dismissal of Mr. Burnett’s complaint. Concluding, however, that Mr. Burnett
raised non-frivolous arguments on appeal, we do not assign Mr. Burnett a strike
relative to this appeal, and we GRANT his motion to proceed in forma pauperis.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
11
Although the dismissal of Mr. Burnett’s complaint by the district court will
be his third strike, this third strike does not preclude the granting of in forma
pauperis status on appeal because the third strike will not ripen for purposes of
§ 1915(g) until the dismissal becomes final. See Thompson v. Drug Enf’t Admin., 492
F.3d 428, 432 (D.C. Cir. 2007) (“Although section 1915(g) nowhere expressly states
that dismissals must be final to count as strikes, we think it fairly implied.”); see also
Smith v. Veterans Admin., 636 F.3d 1306, 1314 (10th Cir. 2011) (discussing ripening
of strike in terms of when time for appeal expired and judgment became final).
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