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Cooper v. Mirandy

United States District Court, N.D. West Virginia, Wheeling

February 1, 2018

RANDY COOPER, Petitioner,
v.
PATRICK MIRANDY, WARDEN, Respondent.

          STAMP JUDGE

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         On June 15, 2016, pro se Petitioner, Randy Cooper, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner is not challenging his conviction or sentence, but is instead challenging decisions by the West Virginia Parole Board (‘the Board”). On July 26, 2016, Petitioner was granted leave to proceed in forma pauperis. ECF No. 10. On October 17, 2016, Petitioner filed a Motion [ECF No. 13] to Supplement the record with additional exhibits, which was granted by an entered on March 6, 2017. ECF No. 16. On March 17, 2017, the undersigned conducted a preliminary review of the file, determined that summary dismissal was not appropriate, and directed Respondent to show cause why the petition should not be granted. ECF No. 18. Following two enlargements of time, Respondent filed his Response together with a Motion for Summary Judgment with Memorandum in Support and exhibits. ECF Nos. 28-30. On June 20, 2017, a Roseboro Notice was issued. ECF No. 31. On July 7, 2017, Petitioner filed his Response [ECF No. 33], and on July 20, 2017, Respondent filed a Reply. ECF No. 34.

         II. Background[1]

         A. Criminal Conviction

         Petitioner arrived in West Virginia on August 25, 1996, after being paroled in Illinois on a conviction for armed robbery. On August 26, 1996, Petitioner's sister was murdered. Subsequently, Petitioner was arrested and indicted in the Circuit Court of Cabell County for her murder. Petitioner entered into plea negotiations with the State which agreed to allow him to plead guilty to first degree murder with a recommendation of life imprisonment with mercy. On November 4, 1996, Petitioner entered a plea of guilty to first degree murder and was sentenced to life with mercy.

         Petitioner did not appeal his conviction to the West Virginia Supreme Court of Appeals (“WVSCA”). However, on July 23, 2002, he did file a Petition for a Writ of Habeas Corpus under the WVSCA's original jurisdiction. The WVSCA summarily refused the petition on November 27, 2002. Thereafter, Petitioner filed at least three habeas petitions in the Southern District of West Virginia challenging his conviction, each of which was denied.[2]

         B. Petitioner's Initial Parole Hearing

         On August 10, 2011, Petitioner received his initial parole hearing. ECF No. 29-3. The Parole Decision Summary states that the Board “carefully considered all the factors disclosed in [the] record, considering the positive as well as the negative factors and various official reports including court documents and the results of [Petitioner's] personal interview.” Id. at 3. There, the Board found that Petitioner was “not prepared to reintegrate back into society.” Id. His “interview failed to convince the Board [that his] release would be compatible with - or in the best interest of - society in general.” Id. As additional factors, the Board stated that Petitioner's crime “was an egregious act of violence that warrants justification for extended parole consideration.” Id. Finally, the Board found that “the circumstances of [his] crime [indicates] a propensity toward violent and vicious behavior, ” and that the Board desired Petitioner to use these three years to further his rehabilitation. Id. As such, the Board found that he did not deserve “the merciful consideration of parole sooner than [three] years” but that he “could submit information to the Board during this time to request a review before the expiration of this period.” Id. Petitioner did not challenge this decision by filing any habeas action or otherwise.[3]

         C. Petitioner's Second Parole Hearing

         On August 26, 2014, Petitioner received his second parole hearing. ECF No. 29-4. During the hearing, the hearing examiner inquired into numerous areas. ECF No. 29-5. The hearing examiner noted that Petitioner was convicted of an armed robbery in 1992. Id. at 2. He then asked Petitioner to discuss the underlying facts surrounding the murder of his sister. Id. Despite pleading guilty to murdering his sister, he stated that he “was wrongly prosecuted in Cabell courts” and that “I'm not denying any guilt. . . . I did do it or didn't do it.” Id. at 3. On two occasions, the hearing examiner had to correct Petitioner by referring to earlier statements made by him. Id. Petitioner did not dispute his earlier statements. Petitioner further stated that there's “no excuse for what I did, but I can say that on the day I did do it I was on a lot of medication at the time of the crime and I blacked out.” Id.

         The hearing examiner further noted that Petitioner had not had any prison disciplinary charges since 2008, and he had obtained a diploma in vocational training. Id. at 4. Whether Petitioner had a home plan was also discussed. Id. at 5. When asked if he had anything further to say, Petitioner replied: “Yes, your honor, it's just that I would like to have a chance in West Virginia. I wouldn't cause any problems, and I haven't caused any problems in jail . . . .” Id. Although Petitioner indicated that he had not caused any problems in jail, the hearing examiner stated: “Well, yeah, I beg to differ, you are in prison for first degree murder. So you have caused some problems in West Virginia, right?” Id. Petitioner agreed. Id. At the conclusion of the hearing, the Board found that Petitioner's “crime was a rigorous act of violence that . . . warrants certification for extended parole. It's the Board's decision that your extended incarceration will serve to protect society from possible or future violence by yourself. It's the Board's opinion that you do not deserve merciful consideration of parole sooner than three [] years.” Id. at 6. Petitioner was informed that he had “the opportunity to submit information to the Board during this time to request a review before the expiration of this period.” Id.

         After the hearing on August 26, 2014, the Board completed a written Parole Decision Summary regarding its decision and its reasoning. ECF No. 29-4. The Board noted that it considered “all the factors disclosed in [the] record, considering the positive as well as the negative factors and various official reports including court documents and the results of [the] personal interview.” Id. at 3. Based on this review, it was the Board's “final decision that [Petitioner was] not prepared to reintegrate back into society. [His] interview failed to convince the Board [that his] release on parole would be compatible with - or in the best interest of - society in general.” Id. The Board further found that Petitioner's “crime was an egregious act of violence that warrants justification for extended parole consideration, ” and “[Petitioner's] continued incarceration will serve to protect society from possible future violence.” Id. Finally, the Board concluded that “[i]n the Board's opinion [Petitioner did] not deserve the merciful consideration of parole sooner than 3 years, ” and he had “the opportunity to submit information to the Board during this time to request a review before the expiration of this period.” Id.

         D. State Habeas

         On November 18, 2014, Petitioner filed a petition for writ of habeas corpus in the Circuit Court of Kanawha County. ECF No. 29-6. In the petition, he alleged four claims:

         (1) the Board violated ex post facto by ordering two, three year parole rehearing dates;

         (2) the Board failed to release him after completion of rehabilitation programs; (3) the Board improperly denied him parole based on his physical disability; and (4) W.Va. Code Section 62-12-13(a)(5) is unconstitutional. On June 16, 2015, without a hearing, the circuit court dismissed the petition “because the petition has failed to demonstrate to this Court's satisfaction that the Petitioner is entitled to relief.” Id. at 3.

         E. Appeal of State Habeas

         Petitioner filed a Notice of Appeal in the WVSCA on July 6, 2015. ECF No. 29-8. There, he stated that the “Board has discriminated against petitioner in denying me parole in August 2014 based upon my physical disability of having the Human Immunodeficiency Virus (HIV) and violated the American with Disability Act of 1990, title 42 U.S.C. 12182 and PA DOC v. Yeskey, 524 U.S. 206 (1998).” Id. at 7. He filed his brief on September 8, 2015, in which he raised two assignments of error:

1. The Circuit Court erred in my case by not looking at the evidence that the board relied upon in denying the petitioner parole.
2. The Circuit Court erred by not looking at the information regarding my HIV medical Condition, and information that other inmates were encouraged to write about me by state officials.

ECF No. 29-9 at 6.[4] Respondent filed his reply brief on October 5, 2015. ECF No. 29-10. The WVSCA affirmed the circuit court's decision by Memorandum Decision on April 15, 2016. ECF No. 29-1. In its decision, the Court found that State ex rel. Carper v. W.Va. Parole Board, 203 W.Va. 583, 509 S.E.2d 864 (1998) applied to Petitioner's case, and the Board “complied with Carper by informing [P]etitioner that he had the opportunity to submit information to the [B]oard and to request a review before the expiration of the three year period.” Id. at 4. The Court further found that the Board made appropriate reasoning on the record as to why an extended hearing date was necessary and not to the detriment of Petitioner. Id. In addition, the Court found that “Petitioner's positive HIV status played no role in the [B]oard's decision. Id. On May 16, 2016, Petitioner filed a Petition for rehearing [ECF No. 29-11], but the WVSCA refused the Petition. ECF No. 29-12.

         III. The Pleadings

         A. The Petition

         Petitioner raises four points of contention in support of his petition but does not indicate what relief he seeks:

1. The retroactive application of W.Va. Code Section 62-12-13 (a)(5) (recodified at W.Va. Code Section 62-12-13 (e)) violates the ex post facto provisions of Article 1, Section 10 of the United States Constitution and ...

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