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Cooper v. Mirandy

United States District Court, N.D. West Virginia

March 12, 2018

RANDY S. COOPER, Petitioner,
v.
PATRICK MIRANDY, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, DENYING PETITIONER'S MOTION FOR INFORMATION TO BE EXPUNGED, AND DENYING PETITION'S MOTION TO APPOINT COUNSEL

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         The petitioner, Randy S. Cooper, filed this pro se[1] petition under 28 U.S.C. § 2254 challenging decisions by the West Virginia Parole Board (the "Parole Board"). The case was referred to United States Magistrate Judge Robert W. Trumble. The respondent filed a motion for summary judgment, and the petitioner filed a motion for information to be expunged and a motion to appoint counsel. Magistrate Judge Trumble issued a report recommending that the respondent's motion be granted and that the petitioner's motions be denied. The petitioner filed timely objections to the report and recommendation.

         I. Background

         On November 4, 1996, the petitioner entered a plea of guilty to first degree murder, for the murder of his sister, and was sentenced to life with mercy. In his petition, the petitioner first argues that the retroactive application of West Virginia Code § 62-12-13(a) (5) (recodified at § 62-12-13 (e)) violates the ex post facto provisions of Article 1, § 10 of the United States Constitution and Article III, § 3 of the West Virginia Constitution. Second, the petitioner argues that he is entitled to be released on parole pursuant to West Virginia Code §§ 62-12-1 through 62-12-29 and the due process clause of the United States Constitution because he successfully completed the rehabilitation programs ordered by the Parole Board at the conclusion of his 2011 Parole Board hearing. Third, the petitioner argues that the Parole Board denied him parole in August 2014 based on his positive Human Immunodeficiency Virus ("HIV") status, which was a discriminatory action in violation of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12182. Fourth, the petitioner argues that West Virginia Code § 62-12-13(a)(5) is unconstitutional because it subjects him to an increase in the punishment he would otherwise be required to serve on his life with mercy term of confinement.

         The respondent filed a motion for summary judgment. In the motion, the respondent first argues that the petitioner's first and fourth claims for relief are time barred under the Anti-Terrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), which establishes a one-year limitation period for filing any federal habeas corpus petition. The respondent also argues that, even if not untimely, the petitioner's contention that West Virginia Code § 62-12-13(e) violates ex post facto principles fails on the merits. Additionally, the respondent argues that, because there is no constitutional right to be released on parole, the petitioner's second claim that he is entitled to be released on parole is without merit. Lastly, the respondent argues that the petitioner's third claim has no merit because his medical condition was not considered as a factor in his denial of parole.

         The petitioner filed a response in opposition to the respondent's motion for summary judgment. In response, the petitioner raises for the first time a number of issues that fall outside of the four corners of his petition. The petitioner also argues that the retroactive application of West Virginia Code § 62-12-13(e) violates both federal and state ex post facto laws because it creates a significant risk of increased punishment. The petitioner then contends that the decision of the West Virginia Supreme Court of Appeals in State ex rel. Carper v. West Virginia Parole Board, 509 S.E.2d 864 ( W.Va. 1998), violates the separation of powers doctrine because it effectively rewrote § 62-12-13(e) by adding vague procedural safeguards in order to permit the statute to pass constitutional muster. Lastly, the petitioner argues that he was wrongly denied parole based, at least in part, on the basis of his HIV condition, in violation of the ADA.

         The respondent filed a reply to the petitioner's response in opposition. In reply, the respondent argues again that the petitioner's claims grounded on his 2011 probation proceedings are time-barred by the AEDPA's one-year statute of limitations. The respondent also contends that there is record evidence that the petitioner's parole denials were not based in any way on his HIV status.

         II. Applicable Law

         Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge's recommendation to which objection is timely made. Because the petitioner filed objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo as to those findings to which objections were made. As to those findings to which objections were not filed, those findings and recommendations will be upheld unless they are "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A).

         III. Discussion

         A. Constitutionality of West Virginia Code § 62-12-13(e)

         The magistrate judge first addresses the claims regarding the constitutionality of West Virginia Code § 62-12-13 (e) . The magistrate judge cites Roller v. Gunn, 107 F.3d 227 (4th Cir. 1997), a case in which the United States Court of Appeals for the Fourth Circuit held that the ex post facto clause is not violated simply because a retroactive reduction in parole review frequency would "necessarily eliminate an opportunity for early release." Roller, 107 F.3d at 235. Rather, a court must inquire whether a retroactive reduction in parole review frequency creates "a sufficient risk of increasing the measure of punishment attached to the covered crimes." Id. (quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 509 (1995)).

         The magistrate judge recognizes that the petitioner was convicted of first degree murder in 1996, at which time all state prisoners were entitled to annual parole consideration after becoming eligible for parole. The magistrate judge notes that, in 1997, the West Virginia Legislature amended the parole statute to permit the Parole Board to set off a prisoner's parole interview for up to three years for prisoners serving life with mercy sentences. The Parole Board began to apply the amended statute to all prisoners regardless of the date of their sentencing. In a challenge to the amended statute, the West Virginia Supreme Court of Appeals held that it is constitutional and does not violate the ex post facto clause of the West Virginia Constitution. See Carper, 509 S.E.2d at 866 (holding that the amended statute "may be applied retroactively to prisoners whose relevant offenses occurred prior to the effective date of the statutory amendment").

         On de novo review, this Court agrees with the magistrate judge that, when viewed within the context of West Virginia's parole regulations, the statute does not facially increase the petitioner's likelihood of punishment. The petitioner's likelihood of punishment does not increase because (1) the statute does not change the length of the sentence in any way; (2) the statute does not affect the timing of the initial parole consideration, only of subsequent parole consideration dates; and (3) the 1997 amendment does not deny the Parole Board the ability to review or grant parole at any time after parole is initially denied for any inmate serving a life sentence. This Court notes that, under Carper, the Parole Board must demonstrate that its decision to deny an inmate parole review for longer than one year will not work to the "detriment or disadvantage" of the inmate. Carper, 509 ...


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