Slocum v. Georgia State Board of Pardons & Paroles
Slocum v. Georgia State Board of Pardons & Paroles
Opinion of the Court
This appeal under 28 U.S.C. § 2253 from the dismissal of petitioner’s writ of habeas corpus requires that we decide whether Georgia’s parole laws create a protectable expectation of conditional release so as to entitle the petitioner to due process in his consideration for parole. For the reasons stated below, we resolve this issue adversely to petitioner and affirm the decision of the district court.
Petitioner-appellant Harry Slocum is presently serving two concurrent life sentences imposed following his 1973 convictions for murder and armed robbery. In August, 1979, the Georgia State Board of Pardons and Paroles accorded petitioner parole consideration for the first time. Slocum’s “parole file” was reviewed, and he was interviewed by a parole board member. Slocum asserts that at this interview he was asked why prior to his arrest he had been a panderer and never otherwise employed. Although it is unclear from the record how petitioner immediately responded, he has since steadfastly maintained that before his incarceration he was a legitimate wage earner. Petitioner alleges that the board member’s question was precipitated by inaccurate information contained in his parole file; that his requests for access to his file to determine the precise nature of this misinformation were denied; and that the parole board’s consideration of inaccurate reports caused the denial of his parole in both 1979 and in August, 1980.
Before the Due Process Clause of the Fourteenth Amendment comes into play, governmental deprivation of a person’s liberty or property must be shown. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A convicted person does not have a constitutional or inherent right to be conditionally released before expiration of a valid sentence. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7,99 S.Ct. 2100,2103, 60 L.Ed.2d 668 (1979). A state may, however, create a legitimate claim of entitlement to parole through statutory language
Under Georgia law the decision whether to release an inmate on parole is a matter committed to the discretion of the State Board of Pardons and Paroles. Ga. Code Ann. §§ 77-514, 77-515 (1973). While many of the provisions structuring the board’s exercise of its discretion include mandatory language — e.g. Ga.Code Ann. §§ 77-512, 77-516, 77-525 — there is a critical distinction between “a scheme that requires release ‘unless adverse findings based on [specific] criteria are made’ [and] a scheme that simply obligates the board to consider such criteria in exercising its discretion.” Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979); see Staton v. Wainwright, 665 F.2d 686 (5th Cir. 1982) (former Fifth Circuit opinion). The Nebraska statute found in Greenholtz to create a protect-able interest in parole clearly falls into the former category;
Petitioner argues that even if there is no statutorily created liberty interest in parole, particular provisions of the Georgia Code create a protectable entitlement to parole consideration. Specifically, petitioner cites the requirement in section 77-525 that parole consideration “shall be automatic” upon the expiration of a set period of confinement and language in section 77-512
In view of the foregoing discussion, we must also conclude that petitioner has not established a due process right to inspect his parole file, “[T]he refusal of a parole board to allow an inmate to examine his file ‘does not assume the proportions of a deprivation of his rights under the Constitution or the laws of the United States.’ ” Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979) (citing Cook v. Whiteside, 505 F.2d 32, 34 (5th Cir. 1974)).
Under the allegations in his petition, Slocum could prove no set of facts which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1959). Accordingly, the judgment of the district court is
AFFIRMED.
. Petitioner raised three contentions in his original writ of habeas corpus: (1) the board improperly considered the circumstances of the offenses of which he was convicted and his past pattern of criminal behavior in making the parole decision; (2) the board inflicted cruel and unusual punishment by falsely promising Slocum that he would be granted parole at his next consideration; and (3) the board denied petitioner access to his parole files, thereby depriving him of due process of law. Later, in an amended petition, Slocum added a claim that the board considered erroneous information in denying him parole. We are not asked to consider the first two of these contentions. Slocum’s initial challenge was not repeated in his counsel’s brief or mentioned at oral argument. In any case the claim is meritless in light of the holdings in Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979) and Payne v. United States, 539 F.2d 443 (5th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1131, 51 L.Ed.2d 554 (1977). As for petitioner’s second contention, it was conceded at oral argument that no language in any written communication from the parole board to Slocum could reasonably be construed as a promise of parole. Petitioner’s remaining arguments are addressed in this opinion.
. In Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981), the Court resolved a question left unanswered in Green-holtz and held that a protectable expectation of parole could not be created by “mutually explicit understandings” — i.e. an unwritten common law of sentence commutation created by traditional but not statutorily mandated parole commission practices. See also Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981).
. The holding in Greenholtz turned on language in the Nebraska parole statutes specifying that release “shall” be ordered “unless” one of four disqualifying conditions is found to exist.
Reference
- Full Case Name
- Harry SLOCUM v. GEORGIA STATE BOARD OF PARDONS AND PAROLES, James T. Morris, Chairman, J. O. Partain, Jr., Mrs. Mamie B. Reese, Floyd Busbee, and Mobley Howell, Members
- Cited By
- 14 cases
- Status
- Published