Unpublished Disposition, 923 F.2d 862 (9th Cir. 1981)

MEMORANDUM^** 

Jon Martin has been incarcerated for the past twenty-four years. He was sentenced to life imprisonment in 1967 for kidnapping and to lesser terms for one count of sodomy and four counts of second degree assault.

Martin became eligible to be considered for parole in late 1981 or early 1982. On September 15, 1981, the Parole Board held a progress hearing regarding Martin. In a decision dated December 4, 1981, the Board decided to " [g]rant good time and authorize parole to BAP [Board Approved Plan] after a period of successful work release." Exhibit A, Appellant's Brief on Appeal. The good time release date (GTRD) is designated in the decision of December 4, 1981, as "open." The Board set no tentative release date for Martin.

Martin was unable to obtain placement in a work release program. A screening committee denied Martin's work release application due to the seriousness of his crimes. Because Martin was unable to comply with the Board's prerequisite that he successfully complete work release, he was not paroled. In 1987 and 1989, the Board found Martin non-parolable and denied him a release.

Martin filed a petition for a writ of habeas corpus. The basis for the petition was that he was not paroled after the Board allegedly authorized his release.

The State moved for summary judgment dismissing the petition on the grounds that Martin had failed to state a claim and had failed to exhaust his administrative remedies. The magistrate recommended that respondent's motion for summary judgment be granted and the petition be denied. Martin objected to the recommendation on the ground that it did not decide his actual claim, and on a separate and new ground that the kidnapping statute was unconstitutional. Further, he claimed his kidnapping convictions should be merged with his other convictions.

The magistrate issued an amended report and recommendation which recognized Martin's primary issue as whether the Parole Board's decision of December 4, 1981, had authorized or commanded Martin's release, so that he had a constitutionally protected liberty interest in parole. Based on the conditional language that Martin must successfully complete work release before parole could be authorized, the magistrate found Martin had no such interest. The magistrate also rejected Martin's claims regarding the validity of his kidnapping conviction because they were not properly raised in the objection. Martin was informed that he could amend his petition to raise the new issues. Martin, however, chose not to amend his petition, but instead filed a new objection to the amended report and recommendation.

The district court adopted the magistrate's report and recommendation and dismissed Martin's petition.

We affirm the district court's decision. A prisoner has no constitutional right to be conditionally released before the expiration of a valid sentence. Greenholz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). This is especially true where the Board has imposed a prerequisite on a prisoner's release. Here, the Board expressly conditioned Martin's potential for parole upon the successful completion of work release. The Board has authority not to parole Martin "unless in its opinion his rehabilitation has been complete and he is a fit subject for release." RCW 9.95.100. The Board was therefore within its authority to decide that Martin could not be paroled without meeting the condition it had decided was appropriate for his rehabilitation.

Under these circumstances, Martin has no liberty interest protected by due process guarantees. Cf. Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir. 1989) (State early release statutes containing mandatory language can create a liberty interest protected by due process).

We also affirm the decision that Martin did not present properly his claims that his kidnapping conviction was unconstitutional or should have been merged with the other counts against him. Martin must amend his petition to allege new grounds rather than bring them for the first time after the magistrate's report has been issued. Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988).

AFFIRMED.