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Pierce v. Ranatza

United States District Court, M.D. Louisiana

May 16, 2018

EMILE PIERCE (# 131248)
v.
SHERYL RANATZA, ET AL.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         NOTICE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         Pro se plaintiff, an inmate confined at the Louisiana State Penitentiary (“LSP”), Angola, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 against Louisiana Parole Board Chairperson Sheryl Ranatza and Deputy Secretary Jenie Powers of the Louisiana Department of Public Safety and Corrections, complaining regarding (1) the State's alleged wrongful interpretation of La. R.S. 15:308(B), the Louisiana statute that addresses the potential amelioration of certain criminal sentences, and (2) the policies and procedures instituted by the Department that effectively violate due process and divest him of an asserted constitutional liberty interest in having his life sentence ameliorated in accordance with the Louisiana statutory scheme set forth in the referenced statute. Plaintiff prays for a declaratory judgment stating that the referenced policies and procedures deprive him of due process and a constitutionally protected liberty interest, that he is legally entitled to a judicial determination of his right to amelioration of his sentence, and that the state courts have misinterpreted the “mandatory” sentencing provisions set forth in La. R.S. 15:308.

         Pursuant to 28 U.S.C. §§ 1915(e) and 1915A, this Court is authorized to dismiss an action or claim brought by a prisoner who is proceeding in forma pauperis or is asserting a claim against a governmental entity or an officer or employee of a governmental entity if satisfied that the action or claim is frivolous, malicious or fails to state a claim upon which relief may be granted.[1] An action or claim is properly dismissed as frivolous if the claim lacks an arguable basis either in fact or in law. Denton v. Hernandez, 504 U.S. 25, 31 (1992), citing Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hicks v. Garner, 69 F.3d 22, 24-25 (5th Cir. 1995). A claim is factually frivolous if the alleged facts are “clearly baseless, a category encompassing allegations that are 'fanciful, ' 'fantastic, ' and 'delusional.'” Id. at 32-33. A claim has no arguable basis in law if it is based upon an indisputably meritless legal theory, “such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998). The law accords judges not only the authority to dismiss a claim that is based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the factual allegations. Denton v. Hernandez, supra, 504 U.S. at 32. Pleaded facts that are merely improbable or strange, however, are not frivolous for purposes of § 1915. Id. at 33; Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir. 1992). A § 1915 dismissal may be made at any time, before or after service of process and before or after an answer is filed. See Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).

         From a review of the allegations of Plaintiff's Complaint, as amended, together with a review of Plaintiff's prior habeas corpus proceedings in the Eastern District of Louisiana, see Emile Pierce v. N. Burl Cain, Warden, Civil Action No. 06-2117-HGB-KWR (E.D. La.), it appears that he was convicted of one count of armed robbery, committed in 1999, and was subsequently adjudicated a third felony offender under Louisiana law and, pursuant to the multiple offender sentencing law then in effect, La. R.S. 15:529.1, was sentenced to life imprisonment, without the benefit of probation, parole or suspension of sentence. At the time of commission of the third offense, Louisiana's multiple offender statute provided for a mandatory life sentence for a third felony offender if the third offense, or if either of the two predicate offenses, was defined as a crime of violence, as was the offense of armed robbery.

         By Act No. 403 of the 2001 Regular Session of the Louisiana Legislature, the multiple offender statute, La. R.S. 15:529.1, was amended to provide that a life sentence was mandated for a third felony offender only when all three of a defendant's predicate convictions fell into specific categories, including being crimes of violence. That legislation, which became effective on June 15, 2001, also created the Louisiana Risk Review Panel, to which prisoners who had been convicted of the enumerated offenses and whose sentences would potentially be ameliorated by the amended sentencing provision could apply for amelioration of their sentences under the statute. The legislation further provided, however, that its provisions were to be given only prospective effect and so did not apply to Plaintiff, whose third offense had predated the amendment to the statute.

         Subsequently, in 2006, the Louisiana Legislature enacted La. R.S. 15:308 to provide that the sentence reductions contemplated by the earlier Act 403 were to be applied retroactively to “… persons who committed crimes, who were convicted, or who were sentenced … prior to June 15, 2001.” Pursuant to subsection (C) of La. R.S. 15:308, such persons were authorized to apply to the Risk Review Panel for review under the more lenient penalty provisions, “… provided that such application ameliorates the person's circumstances.”

         Pursuant to the enactment of La. R.S. 15:308, Plaintiff asserts that he filed a motion to correct his sentence in the state district court in 2006. That motion was allegedly denied, however, upon a judicial determination that the amended statute did not authorize the judicial branch of government to effectively commute a criminal sentence that had already been imposed. The state court concluded that the commutative power envisioned by the referenced statute rested solely in the executive branch, relying on State v. Dick, 943 So.2d 389 (La.App. 1 Cir. 2006). The appellate court decision in Dick was subsequently affirmed by the Louisiana Supreme Court in State v. Dick, 951 So.2d 124 (La. 2007). The Dick Court apparently interpreted the referenced statute as neither creating a mandatory entitlement to amelioration nor as entitling an offender to seek relief in the state courts through the filing of a motion to correct an illegal sentence pursuant to La. Code Crim. P. art. 881.5. See Id. Instead, the Louisiana Supreme Court interpreted the statute as allowing an offender to merely apply for possible leniency in the form of a nonbinding recommendation for the exercise of clemency by the executive branch. See id. As addressed in greater detail below, the Dick decision has recently been abrogated by the Louisiana Supreme Court. See State ex rel. Esteen v. State, ___So.3d___, 2018 WL 618429 (La. 2018).

         In 2012, the Louisiana Legislature acted again. Pursuant to Act No. 123 of 2012, the Legislature eliminated the Louisiana Risk Review Panel entirely, repealing subpart (C) of La. R.S. 15:308 and repealing La. R.S. 15:574.22. Thus, the Risk Review Panel, a part of the Department of Public Safety and an agency of the executive branch of state government that previously had authority to recommend clemency to the Board of Pardons or to recommend parole to the Board of Parole, no longer existed. Plaintiff apparently interpreted this legislative action as placing the authority to potentially ameliorate his sentence in the judicial branch of state government, so Plaintiff allegedly filed a second motion to correct his sentence in the state district court in September 2013. Again, however, Plaintiff's motion was denied, and again the Court allegedly relied upon the reasoning of the Louisiana Supreme Court in State v. Dick, supra, concluding that the judicial branch did not have the authority to modify Plaintiff's sentence.

         Upon denial of judicial relief, Plaintiff finally applied for a “commutation” or amelioration of his life sentence before the Louisiana Pardon Board in accordance with La. R.S. 15:308(B). According to Plaintiff, however, that application was arbitrarily denied on April 23, 2014, without a hearing, allegedly because, pursuant to Pardon Board rules, his prison disciplinary record did not reflect that he had been disciplinary-violation-free for a period of at least 24 months.[2]

         Finally, pursuant to Act 340 of 2014, the Louisiana Legislature again amended La. R.S. 15:308 to add a new subpart (C) that specifically delineated an avenue available to offenders seeking to obtain ameliorative consideration of their sentences under the statute. Under the new provision, “[s]uch ...


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