United States District Court, E.D. Arkansas, Northern Division
FINDINGS AND RECOMMENDATION
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.
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.
represents that in June of 2016, he was determined to be
eligible for release on parole. To date, though, he has not
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
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
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.
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.
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