Preview:

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION

Ricardo Stephon Sherard, #146882, Petitioner, vs. Cecilla Reynolds, W arden of Kershaw CI; and S.C. Dept. Of Probation, Parole, and Pardon Services, Respondents.

) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 6:08-0609-HMH-W MC REPORT OF MAGISTRATE JUDGE

The petitioner, a state prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2241. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review posttrial petitions for relief and submit findings and recommendations to the District Court.

FACTS PRESENTED The record reveals that the petitioner is currently incarcerated at the Kershaw Correctional Institution of the South Carolina Department of Corrections ("SCDC"). On September 5, 1987, the petitioner shot and killed Kendall Dion Driver with a .22 caliber pistol during an attempt to commit an armed robbery. He was arrested and charged with murder and armed robbery. He later was sentenced to a period of incarceration for the remainder of his natural life for murder and 20 years for armed robbery,1 both sentences to be served concurrently.

1

The petitioner completed his sentence for armed robbery on July 7, 2007.

At the time of these convictions, South Carolina law allowed any person receiving a life sentence for murder to be eligible for parole upon the service of 20 years. The petitioner initially became eligible for parole on September 12, 2007, and appeared before the Parole Board requesting a release on parole. Upon the conclusion of his hearing, the Parole Board granted conditional parole only if certain conditions were met. These conditions consisted of: (1) weekly reporting for a period of six months; (2) home detention for a period of three months; (3) must have acquired lawful employment; and, (4) must have been given a favorable psychological evaluation. The petitioner signed the document setting out the conditions of parole. The document stated that the psychological evaluation "must be reviewed by the Board prior to final decision." See petition, ex. A. The petitioner was examined by Dr. Douglas R. Ritz, Ph.D. to evaluate his ability to adjust to society if released on parole. Upon conclusion of this examination, Dr. Ritz determined that the petitioner would not make a successful adjustment back into the community. On November 8, 2007, the petitioner was told by the institution's chaplain that his parole was rescinded due to an unfavorable psychological evaluation. On November 14, 2007, the petitioner spoke with the parole examiner, who informed him that he had an unfavorable psychological evaluation. She told the petitioner that she did not know the reason why it was unfavorable. On November 16, 2007, the petitioner was notified by letter of the decision of the Parole Board that his conditional parole was rescinded due to: (1) Nature and seriousness of current offense; (2) Indication of violence in this or previous offense; (3) Use of deadly weapon in this or a previous offense. According to the letter sent to the petitioner, there is no appeal process for rescission of parole. See petition, ex. B. Upon receiving this notice of denial, the petitioner filed the instant petition for writ of habeas corpus alleging that his parole was denied without the benefit of a hearing in violation of his Constitutional rights. He also contended that the reasons for the denial of

2

parole amount to "deliberate indifference and is arbitrary and capricious; causes unreasonable harm and hardship; and, in violation of the Fourteenth Amendment." On May 5, 2008, the respondents filed a motion to dismiss. By order filed May 6, 2008, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4 th Cir. 1975), the petitioner was advised of the summary judgment dismissal procedure and the possible consequences if he failed to adequately respond to the motion. The petitioner filed his opposition to the motion on June 5, 2008.

APPLICABLE LAW AND ANALYSIS The respondents have moved for dismissal of this action pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted. Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief. In considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff. Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4 th Cir. 1993) (citations omitted). "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 Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). "It is therefore axiomatic that because . . . prisoners have no protected liberty interest in parole they cannot mount a challenge against a state parole review procedure on procedural (or substantive) Due Process grounds." Johnson v. Rodriguez, 110 F.3d 299, 308 (5 th Cir.1997). Because there is no constitutional right, federal courts "recognize due process rights in an inmate only where the state has created a `legitimate claim of entitlement' to some

3

aspect of parole." Vann v. Angelone, 73 F.3d 519, 522 (4 th Cir. 1996) (citing Gaston v. Taylor, 946 F.2d 340, 344 (4 th Cir.1991)). The South Carolina Code authorizes the Parole Board to establish written criteria for the granting of parole. The statute states in pertinent part: The board must carefully consider the record of the prisoner before, during and after imprisonment, and no such prisoner may be paroled until it appears to the satisfaction of the board: that the prisoner has shown a disposition to reform; that, in the future he will probably obey the law and lead a correct life; that by his conduct he has merited a lessening of the rigors of his imprisonment; that the interest of society will not be impaired thereby; and, that suitable employment has been secured for him. The board must establish written, specific criteria for the granting of parole and provisional parole. This criteria must reflect all of the aspects of this section and include a review of a prisoner's disciplinary and other records. The criteria must be made available to all prisoners at the time of their incarceration and the general public. The paroled prisoner must, as often as may be required, render a written report to the board giving that information as may be required by the board which must be confirmed by the person in whose employment the prisoner may be at the time. . . . S.C. Code Ann.

Download 30889.pdf

South Carolina Law