TONY CLAY ROGERS v. LINDA FRANK, Chairperson - Kentucky State Parole Board
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RENDERED: JULY 9, 1999; 2:00 P.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001701-MR
TONY CLAY ROGERS
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 97-CI-01679
v.
LINDA FRANK, Chairperson Kentucky State Parole Board
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE: GARDNER, KNOPF, AND McANULTY, JUDGES.
GARDNER, JUDGE.
Tony Clay Rogers (Rogers) appeals pro se from an
order of the Franklin Circuit Court denying his petition for a
writ of mandamus.
After review of the record and the arguments
of the parties, we affirm.
Rogers currently is an inmate at the Green River
Correctional Complex at Central City, Kentucky.
He is serving a
life sentence after being convicted by a jury in June 1982 of
killing a young child.
In March 1990, Rogers was reviewed for
parole eligibility by the Kentucky Parole Board (the Board) for
the first time.
On that occasion, the Board denied him parole
and deferred reconsideration for a period of sixty months.
In
March 1995, the Board reviewed Rogers for parole, but again
denied him parole and deferred reconsideration for a period of
twenty-four months.
On March 26, 1997, the Board interviewed
Rogers for parole, but again denied him parole and deferred
reconsideration for a period of fifty months.
On November 12, 1997, Rogers filed a petition for a
writ of mandamus seeking an order from the Franklin Circuit Court
compelling the Board to refrain from infringing upon his federal
and state constitutional rights and requesting a new parole
hearing.
In May 1998, the Department of Corrections, on behalf
of Linda Frank, filed a response to the petition.
In its
response, the appellee contended that the Board had complied with
its procedural rules and the decision denying Rogers parole was
not arbitrary.
On May 29, 1998, the trial court summarily denied
the petition and dismissed the action.
This appeal followed.
Rogers argues that the Board violated his right to due
process under the United States Constitution and the Kentucky
Constitution by acting in an arbitrary manner.
He contends that
the Board exercised its authority arbitrarily by denying him
parole while granting parole to allegedly “hundreds” of other
prisoners convicted of murder.
Rogers also complains that the
Board did not follow the dictates of Kentucky Revised Statute
(KRS) 439.340(2) by failing to fully consider whether he could
fulfill the obligations of a law abiding citizen.
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Finally,
Rogers contends that the Board violated the Ex Post Facto Clause
by applying a stricter approach to granting probation after 1986.
As a general rule, a writ of mandamus is an
extraordinary remedy that is available only if the petitioner can
establish that he has no other adequate remedy and irreparable
injury will result if the writ is not granted.
Owens Chevrolet
v. Fowler, Ky., 951 S.W.2d 580, 582 (1997); Foster v. Overstreet,
Ky., 905 S.W.2d 504, 505 (1995).
A prisoner may seek a writ of
mandamus to compel the Board to exercise its duty to perform a
ministerial act, but not to exercise its purely discretionary
duty in any particular manner.
See Evans v. Thomas, Ky., 372
S.W.2d 798, 800 (1963), cert. denied, 376 U.S. 934, 84 S. Ct.
705, 11 L. Ed. 2d 653 (1964).
See also White v. Board of
Education of Somerset Independent School District, Ky. App., 697
S.W.2d 161, 163 (1985) (mandamus available to require
administrative officer to perform purely ministerial act).
“Mandamus is a drastic remedy, to be invoked only in
extraordinary situations where the petitioner can show a clear
and indisputable right to the relief sought.”
F.3d 204, 206 (6th Cir. 1995).
In re Parker, 49
In determining whether a writ of
mandamus should issue, the following inquiries are relevant:
1) Is there a duty imposed upon the officer;
2) is the duty ministerial in its character;
3) has the petitioner a legal right, for the
enjoyment, protection or redress of which the
discharge of such duty is necessary; 4) has
he no other sufficient remedy; and 5) in view
of the fact that the issuance of the writ is
not always a matter of right, are the
circumstances of the case such as will call
forth the action of the court[.]
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Stratford v. Crossman, Ky. App., 655 S.W.2d 500, 502 (1983)
(quoting Fiscal Court of Cumberland County v. Board of Education
of Cumberland County, 191 Ky. 263, 230 S.W. 57, 60 (1921)).
The
standard of review upon appeal of a denial of a writ of mandamus
is whether the circuit court abused its discretion.
Williams, Ky. App., 955 S.W.2d 196, 197 (1997).
See Owens v.
In addition, the
appellant bears the burden of demonstrating an abuse of
discretion.
Id.
In Belcher v. Kentucky Parole Board, Ky. App., 917
S.W.2d 584 (1986), the court discussed the discretionary nature
of parole.
First, the court held that neither the federal
constitution, nor state law created a protected due process
liberty interest in parole.
The court noted that in Kentucky,
parole is a matter of legislative grace, and “[n]othing in the
statute [KRS 439.340] or the regulations mandates the granting of
parole in the first instance, and nothing therein diminishes the
discretionary nature of the Board’s authority in such matters.”
Id. at 586 (citations omitted).
However, the court indicated
that a prisoner has some legitimate interest in a parole decision
based on consideration of relevant criteria within the
discretionary authority of the Board.
Id. at 587.
In the case at bar, Rogers acknowledges the
discretionary authority of the Board, but he maintains that it
exceeded its authority by acting in an arbitrary and capricious
manner.
However, the Board provided Rogers an opportunity to be
heard and a statement of the reasons for its denial of parole.
The Board Decision form indicates that Rogers was denied parole
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for the following reasons: (1) seriousness of the crime; (2)
violence involved in the crime; (3) a life was taken; (4)
misdemeanor record; (5) felony convictions; (6) history of drug
and/or alcohol abuse; (7) good time loss; (8) poor institutional
adjustment; and (9) crimes committed in institution.
Rogers’s
complaint that the Board acted arbitrarily because other
convicted murderers had been granted parole merely implicates the
legitimate discretionary authority of the Board.
Rogers has not
demonstrated that he was denied parole based purely on illegal
criteria.
Moreover, Rogers’s assertion that the Board improperly
considered a prison disciplinary report that had been voided by
the prison warden does not render the entire parole proceeding
invalid given the numerous reasons supporting the decision.
Rogers’s claim that the Board violated the Ex Post
Facto Clause is without merit.
Article I, Sections 9 and 10 of
the United States Constitution, and Section 19 of the Kentucky
Constitution prohibit ex post facto laws.
The prohibition on ex
post facto laws prevents the government from increasing
punishment for an act that occurred prior to a change in the law.
In a case involving the application of a new statute to parole
eligibility, the Supreme Court in California Department of
Corrections v. Morales, 514 U.S. 499, 115 S. Ct. 1597, 131 L. Ed.
2d 588 (1995), discussed the proper analysis for determining
whether the retrospective application of a law offends the Ex
Post Facto Clause.
In Morales, the Court stated that the proper
focus of the ex post facto inquiry is whether the relevant change
“alters the definition of criminal conduct or increases the
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penalty by which a crime is punishable,” rather than whether it
involves an “ambiguous sort of disadvantage” or affects “a
prisoner’s opportunity to take advantage of provisions for early
release.”
Id. at 503 n.3, 115 S. Ct. at 1602 n.3.
See also
Lynce v. Mathis, 519 U.S. 433, 117 S. Ct. 891, 137 L. Ed. 2d 63
(1997).
The ex post facto issue necessarily concerns a matter of
“degree”, but there is no violation if the change “create[d] only
the most speculative and attenuated possibility of producing the
prohibited effect of increasing the measure of punishment for
covered crimes.”
1603.
Morales, 514 U.S. at 508-09, 115 S. Ct. at
While the Supreme Court declined to articulate an exact
dividing line for identifying ex post facto changes in the law,
it clearly indicated that “speculative”, “attenuated”, and
“conjectural” effects on punishment are insufficient under any
threshold to constitute constitutional violations.
Finally, the
party challenging the law has the burden of establishing that the
measure of punishment has increased in order to prove the
existence of a constitutional violation.
Ct. at 1603 n.6.
Id. at 510 n.6, 115 S.
As the court stated in Hamm v. Latessa, 72 F.3d
947, 959 (1st Cir. 1995), cert. denied, ___ U.S. ___, 117 S. Ct.
154, 136 L. Ed. 2d 99 (1996), “A party who asserts an ex post
facto claim must show a real possibility of cognizable harm, not
a theoretical possibility bound up in gossamer strands of
speculation and surmise.”
Rogers’s ex post facto argument is deficient for
several reasons.
First, he has failed to identify any law that
has been applied retrospectively by the Board.
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His complaint
merely concerns the Board’s exercise of discretion, rather than
application of new parole regulations.
See generally Ruip v.
United States, 555 F.2d 1331 (6th Cir. 1977) (parole guidelines
do not come within prohibition against ex post facto laws because
they are advisory guideposts for discretionary decision-making);
Kelly v. Southerland, 967 F.2d 1531 (11th Cir. 1992) (same);
Inglese v. United States Parole Commission, 768 F.2d 932 (7th
Cir. 1985)(same).
Rogers’s reference to KRS 439.3401, the
violent offender statute, as the impetus for a change in the
frequency of parole denials is unavailing.
This statute set
minimum parole eligibility standards but it does not affect the
ultimate decision on whether to grant or deny parole once a
prisoner becomes eligible.
Rogers has not suggested that KRS
439.3401 was applied to him directly.
Second, Rogers’s complaint lacks any specificity with
respect to how any change in the Board’s practices actually
increased the measure of punishment.
Rogers asserts that when he
was first incarcerated the Board’s practice was to grant parole
to everyone within a reasonable time after they became eligible.
His allegation that he was denied parole because of an arbitrary
modification in the standards for parole simply is too
speculative and conjectural.
The record reveals valid
substantive reasons for the Board’s decision denying him parole
that Rogers had not refuted.
As a result, Rogers has not
demonstrated a cognizable ex post facto claim.
In conclusion, Rogers has failed to establish an
entitlement to the extraordinary remedy of a writ of mandamus.
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Rogers’s complaints do not raise a legitimate challenge to the
discretionary authority of the Board; and, therefore, he has not
shown a clear right to relief.
The trial court did not abuse its
discretion in failing to grant the petition for a writ of
mandamus.
For the foregoing reasons, we affirm the order of the
Franklin Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Tony Clay Rogers, Pro Se
Central City, Kentucky
Keith Hardison
Department of Corrections
Frankfort, Kentucky
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