McLaughlin-Cox v. Parole Commission
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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1093 September Term, 2010 JOHN WAYNE MCLAUGHLIN-COX v. MARYLAND PAROLE COMMISSION Kraus er, C.J., Matriccian i, Sharer, J. Frederick (Retired, Specially Assigned), JJ. Opinion by Matricciani, J. Filed: July 11, 2011 On October 23, 2009, appellant petitioned the Circuit Court for Washington County for a writ mandamus. The court heard the matter on June 18, 2010, and issued a memorandum opinion and order on July 2, 2010, denying appellant s petition. Appellant noted the present appeal on July 27, 2010. Q UESTIONS P RESENTED Appellant presents one question for our review, which we have reworded, for clari ty: Did the circuit court err when it denied appellant s petition for writ of mandamus? For the reasons set forth below, we answer no and we affirm the judgment of the circuit court. F ACTUAL AND P ROCEDURAL H ISTORY On January 12, 1988, appellant pleaded guilty to two counts of second degree murder, and was sentenced to thirty years of confinement for each count, to run consecutively. Appellant s first parole hearing took place on July 17, 2002. On August 6, 2002, the Maryland P arole Com mission ( M PC ) pro vided app ellant a copy of its Parole Recom mendation/De cision form. In a single para graph near the top, the fo rm lists a number of factors that shall be considered in determining whether you, the inmate, are suitable for parole. Immediately below that paragraph, there is a single blank line labeled HEA RING OFF ICER REC OM MEN DAT ION/ COM ISSIO N DE CISIO N, which contains only the hand-written word REFUSE. Appellant then filed suit in the United States District Court for the District of Maryland under 42 U.S.C. § 1983, alleging that the MPC s decision constituted cruel and unusual punishm ent and that the MP C violated due pro cess by failing to follow statutory procedural requirements set forth in the Correctional Services Article ( CS ) of the Maryland Cod e (1999). On M ay 15, 2003, n early ten mon ths after its dec ision, the M PC sent a ppellant a memorandum in wh ich it explained its decision, as follows: The fac ts of the case indicate you b rutally stabbed to death two victims in their home. The elderly female was the mother of the male victim. You then left the state. The nature and circumstan ces of the m urders and the victim im pact warra nts refusal. On August 15, 2003, the U.S. District Court issued an opinion and order holding that appellant s action was barred by the Eleventh Amendment and will be dismissed. Continuing, the court explained that [e]ven if this matter were to proceed, the plaintiff has failed to present any facts that w ould entitle him to relief, in part 1 because a Maryland inmate has no legitimate liberty interest in parole release, citing Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) ( the Maryland parole statute does not create a legitimate expectation of parole release ). On October 23, 2009, appellant petitioned the Circuit Court for Washington County for a writ mandamus directing the M PC to co nvene a n ew paro le hearing w ith 1 The court also held that appellant presented no viable Eighth Amendment claim, but that discu ssion is not rele vant to this ap peal. -2- different commissioners and to remove from its records all information considered in the July, 2002, hearing. The circuit court heard the matter on June 18, 2010, and issued a memorandum opinion an d order on July 2, 2010. F irst, the circuit cou rt held that M PC com plied with CS § 7-307 (c)(2) when it provided appellant with the recom mendation and decision form on July 17, 2002. Second, the circuit court held that the federal court s order dismissing appellant s suit barred his due process claims as res judicata . Appellant noted the present appeal on July 27, 2010. D ISCUSSION Appellant argues that the MPC contravened CS §§ 7-305 and 7-307 and thereby violated his right to due process under the Fifth Amendment to the United States Constitution, as applied to M aryland by the Fourteenth Am endment. Wh ile the trial court disposed of these arguments as res judicata , it appears that the federal court s holding on those claims may have been dicta because th e action w as dismissed on Eleve nth Amendm ent immunity grounds. T herefore, we m ust consider the merits of ap pellant s due process claims.2 2 Although appellant uses the words equal protection in his petition and brief, we will not consider it because appellant has not identified the classification to which he was subjec ted. See Tyler v. City of College Park, 415 Md. 475, 501 (2010) (where the government action at issue neither interferes with a fundamental right nor implicates a suspect classification, the test for determining whether a statute violates equal protection is rational basis review, under which a legislative classification will pass constitutional (contin ued...) -3- Appellant s constitutional claim is predicated on two violations of the Maryland Code. Firs t, appellant m aintains that the MPC violated the C orrectional S ervices A rticle because it did not consider all factors listed in § 7-305. Second, appellant maintains that the MPC violated CS § 7-307(c)(2), which requires the MPC to give the inmate a written report o f its find ings w ithin 30 days afte r the hea ring. We need not determine whether the MP C actually violated these provisions, because appellant s constitutional claims are groundless. The Fifth Amendment to the United States Constitution states that no person shall be deprived of life, liberty, or property, without due process of law, and the Fourteenth Amendment applies due process to state governments. In order for due process guarantees to attach, they must protect a legally co gnizab le liberty in terest, b ut appe llant lack s this nec essary inte rest. And although that is the direct application of Bryant v. Maryland, several important opinions f ollowed th at opinion, so it behoove s us to determ ine wheth er its holding is still valid. The question of what constitutes a liberty interest is complicated when the alleged ben eficiary of lega l guarantee s is a convic ted criminal w ho has be en rightfully 2 (...continued) muster so long as it is rationally related to a legitimate gove rnmental interest). We also note that ap pellant argued to the circuit court that the M PC s actions we re punishm ent ex post facto , but he has n ot maintaine d that argum ent in this app eal. Finally, we note that appellant has not claimed any violation of his rights under the Constitution of Maryland. -4- stripped of his or her liberty to be free from confinement. A prisoner naturally has restricted rights to liberty, but a valid criminal conviction that justifies punitive detention does n ot entire ly eliminat e the libe rty interests of con victed p ersons . DA s Office v. Osborne, 129 S. Ct. 2308, 233 4 (2009). The string of cases relevant to this appeal began with Morrissey v. Brewer, 408 U.S. 471, 482 (1972), in which the Supreme Court held that a parolee has a qualified liberty interest in parole that cannot be deprived without due process. Drawing on Morrissey, the Supreme Court held in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S . 1 (1979), tha t statutory langua ge can ve st a liberty interest in prisoners if the language creates a protectible expectation of parole, 442 U.S. at 11. In subsequent cases, the Court refined its holding and explained that an expectation requires ex plicitly mandatory language, i. e., specific directives to the decisionmaker that if the regulations substantive predicates are present, a particular outcome must follow, in order to create a liberty interest. Kentucky Dep t of Corrections v. Thompson, 490 U.S. 454, 463 (1989) (citing Hewitt v. Helms, 459 U.S. 460, 471-72 (1983)). As so often happens, courts then seized upon the narrow rule requiring specific directives and explicitly mandatory language to generate an interest in parole and considered it sufficient outside of that context, so that whenever a legislature or administratio n set forth so me nece ssary or sufficie nt factual co ndition for e ven a min ute -5- change in a prisoner s conditions or status, the status quo became a protected liberty interest that could not be deprived without due process. With the due process clause strained near its breaking point, the Supreme Court felt it must rein in the rule it had unleashed, and so in Sandin v. Conner, 515 U.S. 472, 483-84 (1995), announced: [W]e believe that the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established and applied in Wolff [v. McD onnell, 418 U.S. 539 (U.S. 1974)] and Meachum [v. Fano, 427 U .S. 215 (U.S. 1 976)]. Following Wolff, we recog nize that State s may unde r certain circumstances create liberty interests which are protected by the Du e Proce ss Clau se. See also Board of Pardons v. Allen, 482 U.S. 369, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987). But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Proces s Claus e of its o wn fo rce, see, e. g., Vitek [v. Jones, 445 U.S. 480, 493 (1980)] (transfer to mental hospital), and Washington [v. Harper, 494 U.S. 210, 221 -22 (1990)] (involuntary administration of psychotropic d rugs), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. (Interna l footno te omitte d.) Importantly, the Supreme Court s recent opinion in Swarthout v. Cooke, 131 S. Ct. 859 (2011), reaffirms the holding in Greenholtz and thus implies that freedom from restraint includes a prisoner s protectible expectation of parole: Here, the Ninth Circuit held that California law creates a liberty inter est in pa role, see 606 F.3d at 1213. While we have no need to review tha t holding he re, it is a reasona ble -6- applica tion of o ur case s. See Board of Pardons v. Allen, 482 U.S. 369, 373-38 1, 107 S. Ct. 2415, 96 L. Ed. 2d 303 (1 987); Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). Whatever liberty interest exists is, of course, a state interest created by California law. There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to of fer paro le to their prisone rs. Id., at 7, 99 S. Ct. 2100, 60 L. Ed. 2d 668. When, how ever, a State creates a liberty interest, the D ue Proce ss Clause re quires fair procedures for its vindication and federal courts will review the app lication o f those constitu tionally req uired p rocedu res. Thus, while due process guarantees no longer apply to all changes that invoke explicitly mandatory statutory procedures or considerations, constitutional protections do attach specifically to parole if a state legislature enacts specific directives to the decisionmaker that if the regulations substantive predicates are present, a particular outcome must follow, that outcome being either to grant or to deny parole.3 With this in mind, we return to the Supreme Court s original analysis and holding in Greenholtz to determine how Maryland s statutory scheme compares and whether it creates a protectible expectation in parole. In Greenh oltz, the Court analyzed Neb raska s statutory language, which read as follows: Whenever the Board of Parole considers the release of a 3 Lest we be misunderstood, the rule from Sandin v. Conner is broader th an this statement, so that parole is not the only liberty interest that can be protected by expectations. See 515 U.S. at 483-84. -7- comm itted off ender w ho is elig ible for release on paro le, it shall order his release unless it is of the opin ion that his release should be deferred because: (a) There is a substantial risk that he will not conform to the conditions of parole; (b) His release would depreciate the seriousness of his crime or promote disrespect for law; (c) His release would have a substantially adverse effect on institutional discipline; or (d) His continued correctional treatment, medical care, or vocationa l or other trainin g in the fac ility will substantially enhance his capacity to lead a law-abiding life when released at a later date. Neb. Rev. S tat. § 83-1,114 (1) (1976). 442 U.S. at 11 (emphasis added). Additionally, the Nebraska statute provided a list of fourteen explicit factors and one catch-all factor that the Board is obligated to consider in reach ing a de cision. Id. at n.5 (citing Neb. Rev. Stat. §§ 8 3-1,114 (2)(a)-(n) (1976)). In Maryland, the MPC proceeds according to CS § 7-305, Factors and information to be considered : Each hearing ex aminer and com missioner determining whether a n inmate is suitable for p arole, and the Commission before entering into a predetermined parole release agreem ent, shall consider: (1) the circumstances surrounding the crime; (2) the physical, mental, and moral qualifications of the inmate; (3) the prog ress of the in mate durin g confine ment, including the academic progress of the inmate in the mandatory education program required under § 22-102 of the Educatio n Article; (4) a report on a drug or alcohol evaluation that has -8- been conducted on the inmate, including any recommendations concerning the inmate s amenability for treatment and the availability of an appropriate treatment program ; (5) whether there is reasonable probability that the inmate, if released on parole, will remain at liberty without violating the la w; (6) wheth er release of the inmate o n parole is compatib le with the w elfare of so ciety; (7) an updated victim impact statement or recomm endation p repared un der § 7-80 1 of this title; (8) any recommendation made by the sentencing judge at the time of sentencing ; (9) any information that is presented to a commissioner at a meeting with the victim; and (10) any testimony presented to the Commission by the victim or the victim s designated representative under § 7-801 of this title. (Emp hasis ad ded.) In Greenh oltz, a single negative finding removed any possibility of parole, so that release followed if and only if all four factors favored the prisoner. Parole in Maryland, by contra st, is not e xplicitly co ndition ed on s ome p articular comb ination o f findin gs. This is to say that none of the factors of CS § 7-305 either independently or in some particular combination is a necessary or sufficient condition of release. Instead, the factors are weighed against each other and taken as an undifferentiated but informative whole. Moreover, individual factors such as the circumstances surrounding the crime and victim impact statement give no objective direction as to how those factors should be -9- considered, leaving commissioners with wide discretion in their ultimate determinations.4 Appellant argues strenuously that CS § 7-305 and 7-307 afford him due process protections b ecause the y employ the w ords mu st and sh all, but those w ords create only specific directives to consider the factors and to issue a written decision as prescribed . They are no t specific dire ctives instruc ting the M PC as to w hen, exac tly, it must or m ust not grant par ole. For the foregoing reasons, the Maryland statutory scheme governing the MPC s consideration of parole does not create a liberty interest protected by the Fifth and 4 While the Nebraska statute required that its Board of Parole shall order h is release unless any of the four conditions that follow are true, our opinion does not rest on the statute s positive p hrasing an d would be the sam e if the statute w ere word ed in the neg ative, i.e. that the State shall not order his release unless all of the four conditions were false. -10- Fourteenth Amendments. Thus, appellant s constitutional claims fail, and we affirm the judgment of the circuit court denying his petition for a writ of mandamus.5 JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT. 5 Finally, we note that the record supports appellant s fundamental allegation that the MP C violated CS § 7-3 07 by failing to provide a w ritten report of its findings w ithin thirty days after appellant s hearing. (By contrast, the MPC s alleged failure to consider all factors under CS § 7-305 is a factual matter. The MPC s explanatory memorandum was silent as to several factors, leaving the trial court to determine whether they did not actually consider those factors or whether they considered those factors but did not find the m pers uasive . Presum ably, the tria l court h ere fou nd the la tter.) But even if w e excised this point and co nsidered it independen tly of appellant s constitutiona l claims, appe llant has prov ided neithe r statutory nor jud icial authority entitling him to a new h earing or to e xpunge the MP C record s as he requ ested in his petition for mandamus. Although the MPC s cursory compliance with CS § 7-305 and its failure to comply with CS § 7-307 constituted procedural violations, the legislature has not authorized redress to accompany the rules of procedure it set forth in the Correctional Servic es Artic le, whic h thus re mains a pape r tiger. -11-
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