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Ware v. Kelley

United States District Court, E.D. Arkansas, Northern Division

April 9, 2019

CARVIN WARE PETITIONER
v.
WENDY KELLEY, Director of the Arkansas Department of Correction RESPONDENT

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Recommendation has been sent to United States District Judge D.P. Marshall Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         PLEADINGS.

         In July of 2002, petitioner Carvin Ware (“Ware”) pleaded guilty in an Arkansas state trial court to four counts of rape and two counts of engaging children in sexually explicit conduct for use in a visual or print medium. See Ware v. Norris, 5:06-cv-00035 GH, Docket Entry 8, Exhibit A. He was sentenced to the custody of the Arkansas Department of Correction (“ADC”) and came to be assessed as a Level 3 sex offender.

         Ware represents that in June of 2016, he was determined to be eligible for release on parole. To date, though, he has not been released.

         Ware began the case at bar by filing a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. In the petition, he alleged that ADC officials are improperly denying his release on parole. He appeared to so maintain for two reasons. First, he alleged that his release is being denied on account of his mental and physical impairments in violation of the Americans with Disabilities Act (“ADA”). Second, he alleged that his release is being denied because ADC officials have failed to find him an acceptable place to live. He asked that he be released to an acceptable residence or, alternatively, to a local mental health facility.[1]

         Respondent Wendy Kelley (“Kelley”) responded to the petition by filing a motion to dismiss, which was denied. She then filed a response to the petition. In the response, she alleged, in part, the following:

... Ware's petition fails to demonstrate ADC had any duty to provide housing for sex offenders on parole, and failed to show he applied for a transitional housing program or otherwise met the conditions required for supervised release. ... Nor has Ware demonstrated an ADA-qualified disability requiring accommodation in order to transfer to a transitional housing facility or to supervised release. ... Thus, as an alternate basis for denial of the petition, any disability discrimination claim should be denied on the basis that Ware has not demonstrated a prima facie ADA claim. ...

See Docket Entry 22 at CM/ECF 17-18. Kelley joined her response with an affidavit from John Felts (“Felts”), the Chairman of the Arkansas Parole Board (“Board”).

         Ware thereafter filed a reply to Kelley's submission. In the reply, Ware represented, inter alia, that there are no transitional housing facilities presently accepting Level 3 sex offenders, and ADC officials have refused to find him an acceptable place to live.

         The undersigned has carefully considered the parties' pleadings and exhibits. Having done so, the undersigned is persuaded that Ware's petition warrants no relief and should be dismissed.

         LAW.

         The undersigned begins by noting that “[n]othing in the Constitution requires a State to provide for probation or parole.” See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 19 (2008). “But when a State adopts a parole system that applies general standards of eligibility, prisoners justifiably expect ...


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