Lomax v. Warden

HARRELL, Judge. Mr. Walter E. Lomax, appellant, essentially asks us to determine whether a statement the Governor made at a press conference is more than merely “news.” In this case, we answer no. This appeal from the denial of what facially is styled as a habeas corpus petition focuses primarily on the nature, constitutionality, and effect of Governor Glendening’s pronouncement during a press conference on 21 September 1995 that he would not approve parole for “violent offenders” sentenced to life imprisonment unless they were very old or terminally ill. Governor Glendening stated that “[i]f you murder or rape and you are sentenced to life in prison in Maryland, you will serve a life sentence.” (Emphasis in original press release).

In addition, the Governor stated that he had “directed the Parole Board not to even recommend — to not even send to [his] desk — a request for parole for murderers [sic] and rapists.” During the course of that press conference, the Governor publicly declined to approve the Maryland Parole Commission’s parole recommendations for eight inmates sentenced to life imprisonment (“lifers”), including appellant here. Aggrieved, appellant subsequently filed a petition for habeas corpus relief in the Circuit Court for Baltimore City. The Honorable John C. Themelis of that court denied the petition ³¹⁸ by written Memorandum and Order, dated 27 January 1997. Appellant, acting in proper person here as he did below, appeals from that denial.

Appellee suggests that we consider a threshold issue before deciding whether to reach the merits of the appeal. Appel-lee’s query, which we have rephrased, is: I. Whether appellant’s petition for writ of habeas corpus provides a basis for relief. In the event that we find no merit in the State’s assertion, appellant raises the following issues for our consideration, which we have rephrased and reorganized as follows: II. Whether the Governor’s pronouncement deprived appellant of “meaningful parole consideration,” in violation of Article 24 of the Maryland Declaration of Rights and the 14th Amendment of the U.S. Constitution.

III

Whether the Governor’s pronouncement violates the ex post facto clauses of the Maryland Declaration of Rights, Article 17 and the U.S. Constitution Article I, section 10, clause 1.

IV

Whether the Governor’s pronouncement violates the separation of powers doctrine set forth in Article 8 of the Maryland Declaration of Rights. V. Whether the trial court, in issuing its memorandum and order denying appellant habeas corpus relief, insufficiently addressed the issues in appellant’s petition, and whether the trial court failed to comply with Maryland Rule 15-311 (former Maryland Rule Z53). 1 We find no merit in any of the parties’ arguments. Accordingly, we affirm the judgment of the trial court. ³¹⁹ PROCEDURAL HISTORY On 14 January 1969, the Circuit Court for Baltimore City (Shirley B. Jones, J.), sentenced appellant in three criminal cases. 2 The court sentenced him to a life sentence in one case, and ten and twenty years respectively in the second and third cases. The court ordered appellant to serve the ten and twenty year sentences concurrent with the life sentence.

In 1994, the Maryland Parole Commission recommended appellant for release on parole. On 21 September 1995, Governor Parris N. Glendening declined to approve that recommendation. Appellant subsequently filed a petition for habeas corpus relief and then a supplement to the petition on 19 December 1996 and 30 January 1997, respectively. In his petition, appellant challenged the constitutionality of Governor Glen-dening’s parole policy on federal and state due process and ex post facto grounds, and claimed a violation of the state separation of powers doctrine.

On 27 January 1997, the circuit court denied appellant’s petition. The court concluded that appellant had no constitutional right to parole and therefore had no constitutionally protected liberty interest in parole release. The court further held that parole is a purely executive function, vested exclusively in the Parole Commission, and therefore the court could not interfere with the Commission’s decision to approve or deny parole. Appellant filed a Motion to Vacate, Alter, Amend, or Revise the Final Order on 12 February 1997, which the court denied on 18 February 1997.

Following that denial, appellant filed this appeal. STATUTORY HISTORY: MARYLAND PAROLE LAW The Maryland Constitution, article 3, section 60 states that “[t]he General Assembly of Maryland shall have the power to provide by suitable general enactment ... (c) for the release ³²⁰ upon parole in whatever manner the General Assembly may prescribe, of convicts imprisoned under sentence for crimes.” Pursuant to that authority, the General Assembly established the Maryland Parole Commission (“the Commission”). See Md.Code (1957,1997 Repl.Vol.), Art. 41 § 4-502.

The General Assembly gave the Commission, among other powers and duties, the “exclusive power” to “[a]uthorize the parole of individuals sentenced under the laws of this State to any penal or correctional institution, jail, or other place of confinement or detention within the State.” Md.Code (1957, 1997 Repl. Vol., 1997 Supp.), Art. 41 § 4-504(a)(l). In addition, the statute grants the Commission the “exclusive power” to “[h]ear cases for parole release in which ... [t]he inmate is serving a sentence of life imprisonment.” Id. § 4-504(a)(3)(iii). Section 4-506 establishes multiple factors that each hearing examiner and Commission member must consider when determining whether an inmate is suitable for parole.

These factors are: (1) The circumstances surrounding the crime; (2) The physical, mental, and moral qualification of the inmate eligible for parole; (3) The progress of the inmate during his confinement ...; (4) Whether or not there is a reasonable probability that the inmate, if released on parole, will remain at liberty without violating the law; (5) Whether or not release on parole of the inmate is compatible with the welfare of society; (6) An updated victim impact statement or recommendation (7) Any recommendation made by the sentencing judge at the time of sentencing; (8) Any information that is presented to a Commission member at a meeting with the victim; and (9) Any testimony presented to the Commission by the victim or the victim’s designated representative____ Of particular relevance to appellant’s situation, the General Assembly has set forth additional provisions that specifically ³²¹ address applications for parole of inmates serving life sentences. Section 4 — 504(b)(3) establishes that “[t]he Commission shall ... [r]eview and make recommendations to the Governor concerning applications for ... parole of a person under a sentence of life imprisonment____” In addition, in section 4-516(d), the General Assembly set forth its intent to give the Governor, rather than the Commission, the final authority to parole inmates sentenced to life imprisonment. Section 4-516(d) provides in relevant part: (d) Prisoners serving life imprisonment. — (1) ... [A] person who has been sentenced to life imprisonment is not eligible for parole consideration until the person has served 15 years or the equal of 15 years when considering the allowances for diminution of period of confinement.... (4) If eligible for parole under this subsection, an inmate serving a term of life imprisonment ... shall only be paroled with the approval of the Governor.

The Parole Commission’s statutory authority and administrative policy regarding parole for inmates serving life sentences is further amplified in the Code of Maryland Regulations (“COMAR”). 3 COMAR 12.08.01.17 § A(7)(a) and (g) state that inmates sentenced to life imprisonment are eligible for parole after 15, or the equivalent of 15, years and that “[i]f the Commission meeting en banc agrees that the prisoner should be granted parole, the Commission’s recommendation for parole shall be forwarded to the Governor.” In addition, COMAR 12.08.01.17 § A(6)(a) provides that “[t]he file of a prisoner sentenced to life imprisonment, or to a term of 25 years or more shall be administratively reviewed by the Commission after serving a term of 5 years of the sentence....” Pursuant to COMAR 12.08.01.17 § A(6)(f), an administrative review shall: (i) Be conducted by a randomly assigned Commission member or hearing examiner; ³²² (ii) Ensure that the file contains the necessary documents; (iii) Develop a chronological record of the case before the initial parole release hearing; and (iv) Be sent to the prisoner and the institution where the prisoner is incarcerated. With these statutory and administrative provisions in mind, we approach the matters placed before us. I. Initially, we address the State’s principal argument that appellant’s petition offered no basis for habeas corpus relief. In addition, we address whether appellant has a right to appeal from the circuit court’s denial of his application for a writ of habeas corpus, styled as such or as the substance of the petition may otherwise warrant.

A. Appellee argues that appellant, in his petition for habeas corpus, did not challenge the lawfulness of his current detention and, therefore, the petition does not lie. See Hazel v. State, 226 Md. 254, 264 , 173 A.2d 187 (1961). In Hazel , the Court of Appeals stated that “Contentions which go to the regularity, rather than to the validity of the proceedings, cannot be raised by habeas corpus....” Id. at 264 , 173 A.2d 187 . We need not decide here whether appellant’s contentions go to the regularity or the validity of the proceedings that led to his detention.

Instead, we follow the Court’s reasoning in Clark v. Warden of the Maryland House of Correction, 213 Md. 641 , 131 A.2d 396 (1957) where the Court “ ‘assume[d] without deciding’ ” that a petitioner, in a habeas corpus petition, could raise a constitutional challenge to the Board of Parole and Probation’s exercise of discretion in a parole matter. Id. at 642 , 131 A.2d 396 . The Court stated: “ ‘A failure of the Board [of Parole and Probation] to exercise its discretion so as to grant credit does not deprive the petitioner of any constitutional right, even if we assume, without deciding, that such a point could be raised on habeas corpus.’ ” Id. ³²³ at 642, 131 A.2d 396 (citation omitted); accord Carolina v. Director of the Department of Parole and Probation, 217 Md. 379, 380-81 , 142 A.2d 602 (1958). Similarly, because, as we discuss below, we find no constitutional defects in the Governor’s pronouncement and its effect on the Parole Commission’s exercise of discretion, we assume, without deciding, that appellant could raise these constitutional challenges in a habe-as corpus petition. 4 B. In addition, although not asserted explicitly by appellee as a ground for dismissal of this appeal, we consider nostra sponte whether this appeal is authorized.

We may do so as this potential issue is jurisdictional in nature. Biro v. Schombert, 285 Md. 290, 293 , 402 A.2d 71 (1979). Ordinarily, no right of appeal exists from the denial of an application for a writ of habeas corpus. But when, as here, an ertswhile appellant does not base his complaint of unlawful detention on a challenge to the underlying illegality of the conviction or sentence he is serving, the Post Conviction Procedure Act (PCPA), article 27, section 645A(e) of the Maryland Code, authorizes such an appeal.

See Gluckstern v. Sutton, 319 Md. 634, 656-63 , 574 A.2d 898 (1990). We explain how we arrived at this conclusion. We first consider the right of appeal from a final order in a habeas corpus case and note that such an appeal “may be taken ... only where specifically authorized by statute.” Id. at 652 , 574 A.2d 898 . Two statutes authorize such appeals. ³²⁴ Article 41, section 2-210 of the Maryland Code (1957, 1997 Repl.Vol.) authorizes appeals to this Court if the “application for a writ of habeas corpus after an extradition hearing ... is denied by the trial court.” Section 3-707(a) of the Courts & Judicial Proceedings (C.J.) Article of the Maryland Code (1974, 1995 ReplVol., 1997 Supp.) authorizes appeals to this Court “[i]f a judge refuses to issue a writ of habeas corpus sought for the purpose of determining the right to bail, or if a judge sets bail claimed to be excessive prior to trial or after conviction, but prior to final judgment, ...” Because Mr. Lomax did not apply for a writ of habeas corpus following an extradition hearing, and because his application does not relate to his right to bail, neither statute authorizes this appeal.

Two additional statutes affect the right to appeal in habeas corpus cases. See Gluckstern, 319 Md. at 652-53 , 574 A.2d 898 . C.J. Section 3-706 authorizes an appeal “when a person is released or discharged ‘on the ground that the law under which the person was convicted is unconstitutional.’ ” Gluckstern, 319 Md. at 653 , 574 A.2d 898 (quoting § 3-706(a)). Here, appellant does not challenge the statutory scheme underlying his conviction; instead, he challenges the effect of the Governor’s pronouncement on the statutory and administrative scheme underlying his parole eligibility.

Therefore, section 3-706 does not authorize this appeal. The PCPA also affects the right to appeal from a denial of habeas corpus by limiting the availability of such an appeal. In the PCPA, the legislature set forth an avenue, in addition to habeas corpus, for convicted persons to challenge the validity of their convictions or sentences. See Barr v. State, 101 Md.App. 681, 687 , 647 A.2d 1293 (1994).

Under section 645A(a): Any person convicted of a crime and either incarcerated under sentence of death or imprisonment or on parole or probation, including any person confined or on parole or probation as a result of a proceeding before the District Court who claims that the sentence or judgment was imposed in violation of the constitution of the United States or ³²⁵ the Constitution or laws of this State, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error which would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common-law or statutory remedy, may institute a proceeding to ... set aside or correct the sentence. This Court stated that the “purpose behind § 645A ... was to consolidate into one statutory procedure all the remedies previously available for collaterally challenging the validity of a criminal conviction or sentence.” Barr, 101 Md.App. at 687 , 647 A.2d 1298 . Although section 645A did not explicitly prohibit alternative procedures, it did limit the right to seek appellate review from a denial of habeas corpus. See id. at 685, 647 A.2d 1293 .

Section 645A(e) prohibits appeals to the Court of Appeals or the Court of Special Appeals in habeas corpus or coram nobis cases, or from other common-law or statutory remedies which have heretofore been available for challenging the validity of incarceration under sentence of death or imprisonment ... except appeals in such cases pending in the Court of Appeals on June 1,1958.... In Barr, we noted that although the PCPA, as originally enacted in 1958, gave convicted persons an additional avenue of relief, “[t]he quid pro quo for that additional remedy, including, as we have indicated, the right to seek appellate review if relief was denied, was the loss of any right to seek appellate review in connection with the preexisting alternative relief.” Barr, 101 Md.App. at 685 , 647 A.2d 1293 . In 1965, the legislature amended section 645A(e), to include the following exceptions to this loss of an avenue of potential appellate relief: [N'lothing in this subtitle shall operate to bar an appeal to the Court of Special Appeals (1) in a habeas corpus proceeding instituted under § 2-210 of Article 41 of this Code or (2) ³²⁶ in any other proceeding in which a writ of habeas corpus is sought for any purpose other than to challenge the legality of a conviction of a crime or sentence of death or imprisonment therefor, including confinement as a result of a proceeding under Article 31B of this Code. Consequently, the legislature’s “abrogation of the right to seek appellate review from the denial of habeas corpus applied only where the writ was sought to challenge the legality of a conviction or sentence of death or imprisonment.” Barr, 101 Md.App. at 685 , 647 A.2d 1293 .

In the case at hand, appellant bases his complaint of unlawful detention on the effect of alleged constitutional defects in the Governor’s pronouncement regarding parole for inmates sentenced to life imprisonment, rather than on a challenge to the legality of his conviction or the original imposition of his prison sentence. Therefore, because appellant seeks a “writ of habeas corpus ... for a[ ] purpose other than to challenge the legality of a conviction of a crime or sentence of death or imprisonment therefor ... [,]” section 645A(e) provides appellant with a basis for this appeal.

II

Appellant argues first that the Governor’s pronouncement deprives him of a liberty interest in “meaningful parole consideration” in violation of his right to procedural due process under article 24 of the Maryland Declaration of Rights and the 14th Amendment of the U.S. Constitution. The State argues that because the Governor denied appellant’s parole recommendation on 21 September 1995, after receiving the Commission’s recommendation, the pronouncement did not affect appellant’s individual parole consideration. We agree. Because the Governor’s pronouncement came after the Commission’s consideration of appellant, appellant clearly received meaningful, individualized parole consideration from the Commission.

Appellant further argues, however, that the pronouncement deprives him of his ongoing right to meaningful parole consideration in the future because the Governor effectively has ³²⁷ removed any possibility of parole (presumably unless and until the Governor modifies, eliminates, or ignores his announced policy, or the policy is otherwise abrogated by his successor). Thus, we will address this due process argument. Article 24 of the Maryland Declaration of Rights provides “[t]hat no man ought to be ... deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” Before we can address whether the Governor’s pronouncement deprived appellant of a liberty interest, we must first determine whether appellant has a constitutional liberty interest in meaningful parole consideration. In Patux-ent Institution Board of Review v. Hancock, 829 Md. 556 , 620 A.2d 917 (1993), the Maryland Court of Appeals addressed this issue: The fact that a parole system exists does not, in and of itself, give rise to a constitutionally protected liberty interest in parole release.

On the other hand, a statute, administrative rules or regulations, or accepted practices may provide such an interest. Whatever its source, in order that parole be given effect, there must be “justifiable reliance on maintaining [a] conditional freedom” instead of a “mere anticipation or hope of freedom.” This is so because there is a critical and substantial difference between being deprived of liberty one has, as in parole, and being denied a conditional liberty that one desires, ... “[T]here is a human difference between losing what one has and not getting what one wants.” Id. at 583, 620 A.2d 917 (citations omitted). The Court drew a distinction between the situation of an inmate receiving a recommendation for parole, and an inmate receiving an actual Order of Parole and a copy of a parole agreement. Id. at 584, 620 A.2d 917 .

The Court noted that where the Commission’s recommendation of parole “did not automatically become an order of parole ..'. that action [the recommendation] did not give the respondent a liberty interest.” Id. In contrast, the Court stated, after the Board of Review “served the respondent with an Order of Parole and a ³²⁸ copy of a parole agreement, the Board of Review effected the respondent’s parole and, in the process, created in him a liberty interest.” Id. The Court continued, “[i]t is the order of parole, which, by its terms, was for one year, from which the liberty interest flowed.” Id. at 584-85, 620 A.2d 917 . Appellant argues that the Governor’s pronouncement violates his due process right to a “meaningful parole consideration hearing,” where he has a reasonable expectation that the Commission currently would recommend him for parole, or may do so in the future.

Appellant’s expectation of a parole recommendation is nothing more than a “mere anticipation or hope of freedom.” See id. at 583, 620 A.2d 917 . The Court of Appeals has held that a desire for a parole recommendation, or even a parole recommendation itself, does not create a constitutionally protected liberty interest in parole release. Id. at 583-84, 620 A.2d 917 . Even if appellant receives a recommendation, the recommendation is still subject to the approval of the Governor.

See Md.Code, Art. 41 § 4 — 516(d)(4). A constitutionally-invigorated liberty interest, cloaked with due process protections, arises only after the Governor approves such a recommendation, and the Commission 5 serves an inmate with an Order of Parole. Appellant contends that language in article 41, section 4-516, and language in COMAR 12.08.01.17 § A(3)(a) and 12.08.01.18 § A create an inmate’s liberty interest in parole. He bases his argument on the U.S. Supreme Court’s decision in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 , 99 S.Ct. 2100 , 60 L.Ed.2d 668 (1979), where the Court held that ³²⁹ mandatory language in a state parole statute may create an “expectancy of release [which] ... is entitled to some measure of constitutional protection.” Id. at 12 , 99 S.Ct. at 2106 .

There, the statute stated: “Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred----” Id. at 11 , 99 S.Ct. at 2106 . The Court emphasized that the state statute at issue “has unique structure and language and thus whether any other state statute provides a protectable entitlement must be decided on a case-by-case basis.” Id. at 12 , 99 S.Ct. at 2106 . In this case, appellant argues that article 41, section 4-516 mandates parole consideration and thus gives rise a liberty interest in meaningful consideration. We disagree.

First, appellant incorrectly cites section 4-516. Appellant claims that section 4-516(b)(c) includes mandatory language: “[a person serving life imprisonment] shall be considered for parole when he has served 15 years minus diminution credits.” The correct language from section 4 — 516(d)(1) reads “a person who has been sentenced to life imprisonment is not