Oliver v. Rankins

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
RALPH OLIVER, )
)
Petitioner, )
)
v. ) Case No. CIV-24-1310-SLP
)
WILLIAM CHRISTOPHER RANKINS, )
)
Respondent. )
REPORT AND RECOMMENDATION
Petitioner Ralph Oliver, a state prisoner appearing pro se, filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2241 (“Petition”). Doc. 1. United States District Judge
Scott L. Palk referred this matter to the undersigned Magistrate Judge in accordance with
28 U.S.C. § 636(b)(1)(B)-(C). Respondent filed a Motion to Dismiss, which the
undersigned construes as a Motion to Dismiss and/or a Response (“Response”), Doc. 9,
and Petitioner responded, Doc. 19. Also pending before the Court is Petitioner’s Motion
for the Appointment of Counsel. Doc. 20.
For the following reasons, the undersigned recommends the Court deny the Petition,
which would moot the pending motion for counsel.
I. Background
Petitioner was convicted of three counts of sexual battery of three different children,
for criminal conduct between May 1, 1999, and February 27, 2001. See State v. Oliver,
Case No. CF-2001-1429, District Court of Tulsa County, Oklahoma. The Information
charged Petitioner in Count 1 with criminal acts between May 1, 1999, through February 5,
2001. Doc. 9-3 at 1. Counts 2 and 3 of the Information separately charged him with
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criminal acts between May 1, 1999, and February 27, 2001. Id. The district court
sentenced Petitioner to three consecutive 15-year sentences. Resp. at 1; Doc. 9-2.
Petitioner is currently serving his sentence at the Oklahoma State Reformatory in Granite,
Oklahoma. Pet. at 1.
Oklahoma law requires persons convicted of certain crimes to serve at least 85% of
the sentence imposed before becoming eligible for parole. Specifically, Oklahoma’s 85%
law provides that any “person committing a felony offense listed in” Okla. Stat. tit. 21,
§ 13.1, “on or after March 1, 2000, and convicted of the offense” “shall not be eligible for
parole consideration prior to serving eighty-five percent (85%) of the sentence imposed”
within the Oklahoma Department of Corrections (“ODOC”). Id. § 12.1. Further “such
person shall not be eligible for earned credits or any other type of credits which have the
effect of reducing the length of the sentence to less than eighty-five percent (85%) of the
sentence imposed.” Id. Sexual battery of a child is a felony listed in Okla. Stat. tit. 21,
§ 13.1.
Convictions under the 85% law contrast with other felony convictions where
offenders are eligible for parole considerations after serving one-third or one-fourth of their
sentences. See Okla. Stat. tit. 57, § 332.7(B)-(C) (2022); see also id. § 332.7(B) (2001)
(specifying “for a crime committed on or after July 1, 1998, any person in the custody of
[ODOC] shall be eligible for consideration for parole who has completed serving one-third
(⅓) of the sentence” (citation modified)).
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The undersigned liberally construes the Petition to seek habeas relief based on
alleged violations of the Due Process Clause. Petitioner claims he is entitled to habeas
relief because
• he believes his crimes were committed before March 1, 2000, and he
therefore should not have to serve 85% of each 15-year sentence
imposed; and
• ODOC originally allowed him to serve his sentence at “one third” and
to discharge the sentence for the first count of conviction, and then
ODOC “rebilled the same sentence at 85%” and “took away all earned
credits.”
Pet. at 4-5. Respondent argues ODOC has correctly administered his sentences under the
85% law because his crimes of conviction occurred from May 1, 1999, into 2001—both
before and after the 85% law became law on March 1, 2000. Resp. at 2-3. Respondent
acknowledges “that at one point, Petitioner’s sentences were being incorrectly
administered by ODOC as non-85% crimes” but “this mistake was discovered and
corrected.” Id. at 3.
Respondent further contends that Petitioner’s claims are untimely because he
exhausted his administrative remedies on this issue in 2016 and did not timely file the
Petition within the one-year statute of limitations under 28 U.S.C. § 2244(d)(1). Resp. at
4-5. Petitioner counters that his case involves “extraordinary circumstances” that warrant
equitable tolling. Doc. 19, at 4-6. He also argues that his Petition is timely under a
“continuing violation doctrine” that treats a series of separate acts over an extended period
as a single unlawful act that satisfies the applicable statute of limitations. Id. at 7-8.
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II. Standard of review
To obtain habeas corpus relief, Petitioner must show that he is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). The Rules Governing Section 2254 Cases in the United States District Courts
(“Habeas Rules”) are applicable to habeas petitions brought under § 2241. Habeas Rule
1(b); Boutwell v. Keating, 399 F.3d 1203, 1210 n.2 (10th Cir. 2005). Rule 4 “require[s]
dismissing a habeas petition that fails to allege facts that state a [federal] constitutional
violation.” Boutwell, 399 F.3d at 1211. Petitioner is proceeding pro se, so the Court will
“liberally construe his filings” but “will not act as his advocate.” James v. Wadas, 724
F.3d 1312, 1315 (10th Cir. 2013).
III. Analysis
The undersigned recommends that the Court deny the Petition on the merits because
Petitioner has not alleged a federal constitutional violation. He has no constitutionally
protected liberty interest in the timing of his parole.
“The Due Process Clause applies when government action deprives a person of
liberty or property,” Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir. 1994) (citation
modified), without affording the person whatever “procedural protections the Constitution
requires in [his] particular case,” Zinermon v. Burch, 494 U.S. 113, 127 (1990).
Importantly, “there is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence” imposed by a state court.
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (citation
modified). Therefore, this Court “must find any existing liberty interest in the state statutes
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governing Oklahoma parole.” Hunter v. Beck, 244 F. App’x 848, 851 (10th Cir. 2007);
accord Malek, 26 F.3d at 1015-1016 (reviewing state statutes governing parole to
determine if they create a “legitimate expectation of release” (citation modified)).
Oklahoma’s parole scheme is discretionary, and Petitioner has no constitutionally
protected due process liberty interest in parole. See Shabazz v. Keating, 977 P.2d 1089,
1093 (Okla. 1999) (concluding “there is no protectible liberty interest in an Oklahoma
parole”). Oklahoma’s statutory parole scheme “does no more than create a parole system,
which in the Supreme Court’s view . . . does not establish a liberty interest.” Shirley v.
Chestnut, 603 F.2d 805, 807 (10th Cir. 1979). An Oklahoma prisoner’s eligibility to “be
considered for parole” after he “complete[s] a certain fraction of the sentence” “does not
mean that a prisoner is going to be placed on parole.” Kelly v. Okla. Pardon & Parole Bd.,
637 P.2d 858, 858 (Okla. Crim. App. 1981). That parole decision depends on an advisory
recommendation from the Pardon and Parole Board. See Okla. Stat. tit. 57, § 332.2(A);
Boutwell, 399 F.3d at 1213-15. Accordingly, Petitioner has no “legitimate claim of
entitlement,” Olim v. Wakinekona, 461 U.S. 238, 250 (1983), to parole because of the
Pardon and Parole Board’s discretion to recommend such early release.
Further, contrary to Petitioner’s arguments, ODOC did not unconstitutionally deny
him any earned credits. The “application of the 85% Rule does not extend the duration of
incarceration beyond the term of years initially imposed. It merely postpones the date on
which an inmate is initially eligible to be considered for parole.” West v. Bryant, 763 F.
App’x 652, 661 (10th Cir. 2019) (citation modified). Here, Petitioner has not established
that Respondent improperly applied Oklahoma’s law on 85% crimes to his three sentences.
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And an offender convicted of an 85% crime “shall not be eligible for earned credits” that
“have the effect of reducing the length of the sentence to less than eighty-five percent
(85%) of the sentence imposed.” Okla. Stat. tit. 21, § 12.1. But even if ODOC had
improperly applied the 85% law, such error would not extend the duration of Petitioner’s
incarceration beyond the 15-year sentence on each count (served consecutively) imposed
by the state district court.
Because Oklahoma’s “eighty-five percent rule does not implicate a constitutionally
protected interest,” a petitioner “cannot successfully allege a due process violation based
on its application to his sentence.” West, 763 F. App’x at 661; see also Griffith v. Bryant,
625 F. App’x 914, 917 (10th Cir. 2015) (noting that when a state’s “parole scheme is
discretionary, [an inmate] has no constitutionally protected due process liberty interest in
parole”). Accordingly, without a protected liberty interest in parole, Petitioner is not
entitled to habeas relief based on ODOC’s application of the 85% law.
This Court has similarly denied other § 2241 habeas challenges when petitioners
have claimed improper application of Oklahoma’s 85% law to their sentences violated their
due process rights. See, e.g., Wooton v. Martin, No. CIV-19-693-D, 2019 WL 7596191, at
*2 (W.D. Okla. Oct. 10, 2019) (R&R) (recommending denial of a habeas claim that the
85% law’s application to a petitioner’s child pornography offenses violated due process
because the crime was not listed under the relevant statute when crimes were committed,
on grounds that petitioner lacked any federal liberty interest in parole consideration and
“without a liberty interest in the timing of his parole eligibility, [p]etitioner’s due process
claim fails”) (citation modified), adopted, 2019 WL 6012851 (W.D. Okla. Nov. 14, 2019);
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Bridenstine v. Farris, No. CIV-16-498-R, 2017 WL 4545210, at *8-9 (W.D. Okla.
Sept. 15, 2017) (R&R) (same), adopted, 2017 WL 4544611 (W.D. Okla. Oct. 11, 2017).1
IV. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DENY the
Petition. Adoption of this recommendation would moot the pending Motion for the
Appointment of Counsel. Doc. 20.
The parties are advised of their right to object to this Report and Recommendation.
See 28 U.S.C. § 636. Any objection must be filed with the Clerk of Court not later than
November 26, 2025. See id. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object timely
1 Respondent raised a procedural defense of untimeliness, but the undersigned recommends
that the Court deny the Petition on the merits. In Griffith v. Bryant, a § 2241 petitioner
sought a certificate of appealability (“COA”) after a district court denied his petition. 625
F. App’x at 914. Like Petitioner here, the Griffith petitioner claimed his conviction for
child sex offenses should not trigger Oklahoma’s 85% law because his charging document
alleged the crimes occurred between January 1, 1998, and December 31, 2001—before and
after the March 1, 2000, effective date of the 85% law. Id. at 915. The district court
dismissed the petition as untimely. In seeking a COA, the Griffith petitioner argued the
statute of limitations could be tolled due to a continuing violation. Id. at 917. The Tenth
Circuit acknowledged the “circuit has not addressed whether the continuing violation
doctrine can be used to toll untimely habeas filings.” Id. Rather than ruling on timeliness,
the Tenth Circuit denied a COA because the petition did “not allege a federal constitutional
violation.” Id. The Tenth Circuit reasoned that even if application of the 85% law “would
improperly postpone [the petitioner’s] opportunity for parole, and even if the § 2241
petition implicitly attempts to allege a due process violation, there is generally no federal
constitutional right to parole.” Id. “Also, because Oklahoma’s parole scheme is
discretionary, [petitioner] has no constitutionally protected due process liberty interest in
parole.” Id. Likewise, the undersigned recommends here that the Court deny the Petition
on the merits without the need to address timeliness.
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waives the right to appellate review of the factual and legal issues addressed in this Report
and Recommendation. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 5th day of November, 2025.
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