United States District Court, E.D. Arkansas, Pine Bluff Division
Randy Wadlington brings this petition claiming that the
Arkansas Parole Board violated a state-created liberty
interest when it denied his requests for release to Arkansas
Community Correction (“ACC”) on May 21, 2015, and
again on May 17, 2016.
County Circuit Court Judge Hamilton Singleton revoked Mr.
Waddington's probation and sentenced him to 120
months' imprisonment for failing to register as a sex
offender. (#9-2) Mr. Wadlington was released to the
supervision of Arkansas Community Correction
(“ACC”) on June 10, 2013. (#9-3 at p. 1) On
October 14, 2014, Mr. Wadlington was charged with violating
the conditions of his parole. (#9-3) He waived his right to a
revocation hearing and admitted violating the conditions of
his release. (#9-4) His transfer to the ACC was revoked, and
he was returned to the ADC, where he remains.
federal court may entertain a State prisoner's petition
for writ of habeas corpus only on grounds that he is in State
custody in violation of the constitution or laws or treaties
of the United States. 28 U.S.C. § 2254(a). If Mr.
Wadlington does not allege that he is in custody in violation
of federal law, this Court cannot decide the claims, and they
must be dismissed.
Wadlington contends that Arkansas Code Annotated,
§16-93-615(a)(2)(B) creates a liberty interest in parole
and gives the parole board only two options: (1) grant
parole; or (2) deny parole and accompany the denial with a
course of action to rectify its concerns. Mr. Wadlington
asserts that, upon completion of the course of action, the
statute provides that the parole board “shall
authorize” the inmate's parole and argues that the
“mandatory provision” creates a liberty interest.
(#2 at p. 4)
counters that Mr. Wadlington's claim cannot be the basis
for habeas relief because Arkansas's parole statutes,
including § 16-93-615(a)(2)(B), do not create a liberty
interest in early release from confinement. (#9 at pp. 4-7)
Additionally, Respondent observes that, following Mr.
Wadlington's parole revocation in 2014, the parole board
was not required to apply 16-93-615(a)(2)(B)(i-ii) to
determine his parole eligibility.
inmate has no liberty interest in the possibility of
parole. Persechini v. Callaway, 651 F.3d 802, 808
(8th Cir. 2011). Mr. Wadlington has a liberty interest in
release at the expiration of his sentence; he does not have a
liberty interest in the possibility of a conditional release
prior to the expiration of his sentence. See Swarthout v.
Cooke, 562 U.S. 216, 131 S.Ct. 859, 862 (2011)(the
federal constitution does not confer a right to be
conditionally released before the expiration of a valid
Process Clause itself does not create a protected liberty
interest in parole or release before expiration of a validly
imposed sentence. Greenholtz v. Inmates of Nebraska Penal
& Corr. Complex, 442 U.S. 1, 7 (1979). Further,
nothing in the Arkansas statutes governing parole creates
anything more than a mere possibility of parole; thus, the
statutes do not establish any right to release on parole so
as to trigger due process protection. Pittman v.
Gaines, 905 F.2d 199, 201 (8th Cir. 1990); Parker v.
Corrothers, 750 F.2d 653, 655-57 (8th Cir.
1984); see also Hamilton v. Brownlee,
237 F.Appx. 114, 115 (8th Cir. 2007)(citing Ark. Code Ann.
§ 16-93-701(a)(1) (2006)(other citations omitted)).
Wadlington points to Whiteside v. Arkansas Prole
Board, 492 Ark. 489, 2016 WL 3007628 (May 19, 2016), as
support for his claim that §16-93-615(a)(2)(B)(i-ii) is
a “mandatory, non-discretionary” provision that
creates a liberty interest. In Whiteside, the
Arkansas Supreme Court affirmed that there is “no
liberty interest in parole in Arkansas.” Whiteside
v. Arkansas Parole Bd., 2016 Ark. 217, *2 (2016);
(citing Carroll v. Hobbs, 2014 Ark. 395, 442 S.W.3d
834 (per curiam)). Under the circumstances of Mr.
Whiteside's case, the Court declined to decide, however,
whether §16-93-615(a)(2)(B)(i-ii) creates a liberty
interest in parole because Mr. Whiteside had not established
facts to demonstrate that he had met the criteria to qualify
for transfer. Id. at *3. Accordingly, the holding in
Whiteside does not support Mr. Wadlington's
Court recently rejected Mr. Wadlington's argument that
§16-93-615(a)(2)(B)(i-ii) creates a liberty interest in
the possibility of obtaining parole. Rhodes v.
Kelley, No. 5:15CV00225-BRW-JTR, 2016 WL 2865374, at
*2-5 (E.D. Ark. Apr. 22, 2016), report and recommendation
adopted, No. 515CV00225BRWJTR, 2016 WL 2755450 (E.D. Ark. May
11, 2016). The Court found that, despite the language in
§16-93-615(a)(2)(B)(i-ii), the Arkansas Parole Board
retains discretion to determine whether “there is a
reasonable probability an inmate can be released without
detriment . . . and [is] willing to fulfill the obligations
of a law-abiding citizen.” Id. at *4 (quoting
Ark. Code Ann. § 16-93-701).
also contends that the parole board was not required to apply
§16-93-615(a)(2)(B)(i-ii) to Mr. Wadlington's case
following his revocation. Arkansas statutes provide that,
“an offender who is judicially transferred to a
Department of Community Correction facility and subsequently
transferred back to the Department of Correction by the board
for disciplinary or administrative reasons may not become
eligible for any further transfer under §
16-93-614(c)(2)(E) and (F).” Ark. Code Ann. §
16-93-617. Mr. Wadlington acknowledged this when he waived
his revocation hearing. The acknowledgment Mr. Wadlington
signed reads, “[M]y current ‘regular' parole
eligibility date as Class 1 is: past. I understand
that I will not automatically be released at that time and
that I may be required to serve the remainder of my sentence
in its entirety.” (#9-4)
Wadlington has not established that his parole eligibility is
to be governed by § 16-93-615(a)(2)(B)(i-ii) or that
this section of the Arkansas parole statutes creates a
protected liberty interest. Accordingly, he has not alleged a
violation of the Constitution or federal law, and this Court
cannot grant relief on his petition.