TERRY WOOSLEY v. KENTUCKY DEPARTMENT OF CORRECTIONS, DIVISION OF PROBATION AND PAROLE
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RENDERED:
AUGUST 25, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-002871-MR
TERRY WOOSLEY
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 97-CI-01653
KENTUCKY DEPARTMENT OF CORRECTIONS,
DIVISION OF PROBATION AND PAROLE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, McANULTY and MILLER, Judges.
HUDDLESTON, Judge:
Terry Woosley appeals from an order dismissing
his petition for a declaration of rights concerning his eligibility
for parole brought pursuant to Kentucky Revised Statute (KRS)
418.040.
Woosley is serving a thirty-two-year sentence.
He was
initially convicted of two counts of first-degree robbery in 1978
and received two consecutive ten-year sentences.
After serving
four years, Woosley was released from prison on actively supervised
parole in June 1982.
At that time, his maximum expiration date for
purposes of parole was June 1998.
In April 1986, Woosley’s parole status was changed from
active supervision to inactive supervision.
In a letter dated
February 19, 1986, Woosley’s parole officer advised him of the
change in supervision status. Woosley was informed that the change
did not constitute a final discharge and that he could be returned
to prison or active supervision if he violated the terms of parole.
He was also told that he was eligible to apply for final discharge
from parole on or after June 6, 1990, provided all eligibility
requirements were met, and that “[y]our parole officer will assist
you in this matter.”
A form signed by Woosley on April 9, 1986,
when he was officially released from active supervision, set out
his right to apply for final discharge if he maintained clear
conduct for a period of ten years.
The form also advised Woolsey
that release from active supervision is not a final discharge from
parole and that he was “subject to return to the institution until
[he] receive[d] a final Discharge.”
In June, 1992, Woosley was arrested and charged with the
felony offense of trafficking in marijuana over eight ounces.
In
September 1992, he was convicted of the trafficking offense and
received a two-year sentence that was to run consecutively to the
twenty-year sentence he had received in 1978.1
Upon his return to
prison, the Department of Corrections calculated Woosley’s maximum
expiration date, adjusted for credit time served in jail, as
1
See Ky. Rev. Stat. (KRS) 533.060(2).
-2-
September 2011, which did not include any credit for the eleven
years and three months he had been on parole.2
In February 1994, Woosley was granted parole and released
from prison on active supervision status.
again
arrested
and
charged
with
In July 1996, he was
trafficking
in
a
controlled
substance. In addition to the felony prosecution, Woosley’s parole
was
revoked
in
1997.3
March
In
November
1997,
Woosley
was
convicted of trafficking in a controlled substance and of being a
persistent felony offender in the second degree and received a tenyear sentence to be served consecutively to the previous twentytwo-year sentence.
He is currently serving a thirty-two-year
sentence with a maximum expiration date of 2024 and a minimum
expiration date of 2016.
In
November
1997,
Woosley
filed
a
petition
for
declaratory judgment seeking unspecified relief with respect to
calculation of his prison sentence.
He alleged violation of his
constitutional right to equal protection and due process in the
Correction Department’s handling of his parole and determination of
his parole eligibility.
More specifically, he contended that his
parole officer was negligent in failing to file final parole
discharge documents with the Parole Board that could have led to
completed service of his twenty-year sentence from the 1978 robbery
conviction
prior
to
the
1993
conviction
for
trafficking
in
marijuana.
He alleged that his parole officer failed to carry out
the duties required of him under KRS Chapter 439, 501 Kentucky
2
See KRS 439.344.
3
At that time, reconsideration of Woosley for parole was
deferred for a period of three years until March 2000.
-3-
Administrative Regulation (KAR) 1:050 and Corrections Polices and
Procedures (CCP) 27-25-01.
In January 1998, the Corrections
Department filed a response disputing Woolsey’s allegations and
requesting dismissal pursuant to Kentucky Rules of Civil Procedure
(CR) 12.02, 12.03 and 56.02.4
Department’s response.
Woosley filed a reply to the
The circuit court summarily dismissed the
petition in September 1998.
On
appeal,
Woosley
argues
that
he
had
a
protected
constitutional due process liberty interest in being considered for
final discharge from parole.
He asserts that the use of mandatory
language in 501 KAR 1:050 and CPP 27-25-01 created a liberty
interest and obligated his parole officer to file the necessary
documents requesting final discharge.
Woosley also contends that
the Parole Board was required under 501 KAR 1:050 to automatically
consider him for final discharge from parole after he had been on
parole for ten years with no violations.
He further claims that
the Parole Board’s failure to consider him for final discharge
within the ten-year period following his initially receiving parole
in 1982 violated his right to equal protection.
Woosley’s reliance on CPP 27-25-01 is misplaced.
The
version of the policy cited and relied upon by Woosley became
effective on March 15, 1990, approximately eight years after he was
paroled and four years after he was placed on inactive supervision.
As the Corrections Department has demonstrated, there was no prison
4
Ky. R. Civ. Proc. (CR) 12.02 and CR 12.03, read together,
provide that the court in which an action is pending may dismiss a
complaint which fails to state a claim upon which relief can be
granted.
CR 56.02 provides that the court may grant summary
judgment where there are no material fact issues and the defendant
is entitled to judgment as a matter of law.
-4-
policy regarding the handling of final discharge applications by
parole officers prior to March 1988, at which time the first
version of CPP 27-25-01 was promulgated. The March 1988 version of
the policy did not direct parole officers to prepare form No. 1199,
which contains the final discharge policy contained in 501 KAR
1:050 to which Woosley refers in support of his position at the
initial meeting with the parolee. Thus, Woosley has not shown that
his parole officer violated any policy in effect at the relevant
time period.
Woosley
attempts
to
circumvent
the
problem
of
the
effective date of the policy by arguing that his parole officer was
obligated
to
inform
him
of
any
changes
Corrections Policies and Procedures.
or
additions
to
the
His citation to CPP 27-02-01
and CPP 27-25-01 does not support his argument.
Neither of these
policies require parole officers to act affirmatively to inform
parolees on inactive supervision status of changes in policies not
directly affecting those supervision duties.
A review of either version of CPP 27-25-01 reveals that
the parolee was required to prepare the application for final
discharge.
Both the 1988 and 1990 versions of CPP 27-25-01 state:
“It is the responsibility of the client [i.e., Woosley] to apply on
or after the eligibility date.” In addition, Woosley was given and
signed a document in April 1986 informing him of his eligibility to
apply for early final discharge which was similar to the form No.
1109 discussed in the March 1990 version of CPP 27-25-01.
He was
thus made aware of his ability and responsibility to apply for
early final discharge prior to his parole revocation in 1993.
-5-
Woosley’s attempt to shift the burden on his parole officer for
requesting his early final discharge from parole is unavailing.
Woosley’s argument that the Parole Board violated his
procedural due process rights also fails.
In Belcher v. Kentucky
Parole Board,5 this Court held that a convict does not have a due
process liberty interest in parole.
Our decision was based on the
discretionary authority of the Parole Board in making parole
decisions. “Nothing in the statute or regulations mandates the
granting of parole in the first instance,” we said, “and nothing
therein
diminishes
the
discretionary
nature
of
the
Board’s
authority in such matters.”6
Similarly, the Parole Board has absolute discretion in
deciding whether to grant a parolee final discharge from parole
prior to the maximum expiration of his sentence.
provides in part that:
KRS 439.354
“When any paroled prisoner has performed
the obligations of his parole supervision the board may, at the
termination of such period to be determined by the board, issue a
final discharge from parole to the prisoner . . . .”7
Although 501
KAR 1:050(1) indicates that after a parolee has been on parole for
ten
years,
the
Parole
Board
shall
consider
him
for
a
final
discharge, it also states that “the board retains the right to
grant an early final discharge from parole.”
Woosley was not
entitled to receive a final discharge after serving ten years on
5
Ky. App., 917 S.W.2d 584 (1996).
6
Id. at 586 (citations omitted).
7
Emphasis supplied.
-6-
parole, he merely became eligible for consideration for final
discharge at that time.
While Woosley raises the issue of whether he had a
liberty interest in being considered for final discharge, the
gravamen of his compliant is that his total sentence included the
sentences for the 1978 convictions because he had not received a
final discharge from parole from those earlier convictions. He has
not shown that he would have been granted a final discharge and he,
in
fact,
committed
the
felony
marijuana
trafficking
approximately ten years and one month after being paroled.
offense
Given
the discretionary nature of the decision whether to grant an early
final discharge, Woosley has not demonstrated that the Parole Board
violated a constitutionally protected due process interest in
failing initially to consider or grant him a final discharge from
parole.
Finally, Woosley’s claim that the Parole Board violated
his right to equal protection is without merit.
It is axiomatic
that an equal protection claim must involve disparate or different
treatment of similarly situated individuals.8 Woosley does nothing
more than aver generally that he was subjected to differential
treatment by government officials. Consequently, he has not stated
a cause of action based on equal protection.
In conclusion, Woosley has failed to allege sufficient
facts to support his claim that his rights to due process and equal
8
See, e.g., Mahoney v. Carter, Ky., 938 S.W.2d 575 (1997);
Roberts v. Mooneyhan, Ky. App., 902 S.W.2d 842 (1995); Plyler v.
Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982).
-7-
protection were violated. Therefore, the circuit court did not err
in dismissing his declaratory judgment petition.
The order dismissing Woosley’s petition for a declaration
of rights is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Terrell Woosley, pro se
Marion Adjustment Center
St. Mary, Kentucky
Keith Hardison
Department of Corrections
Frankfort, Kentucky
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