United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
matter comes before the court on respondent's unopposed
motion to dismiss (DE 14) pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the following reasons, the court
grants respondent's motion.
17, 1965, petitioner pled guilty in the New Hanover County
Superior Court to first-degree murder, and was sentenced to
life imprisonment. (Resp't's Mem. Ex. 1). Petitioner
was twenty years old at the time of his conviction.
(Id. Ex. 2). On August 1, 2016, petitioner filed
pro se petitions for a writ of mandamus in both the
North Carolina Court of Appeals and the North Carolina
Supreme Court. (Id. Exs. 3, 4). On August 15, 2016,
the court of appeals denied mandamus, and, on September 29,
2016, the supreme court denied mandamus. (Id. Ex.
August 1, 2016, petitioner filed the instant petition for a
writ of habeas corpus pro se pursuant to 28 U.S.C.
§ 2254. Petitioner raised the following claim:
"extra-ordinary or compelling reasons for a sentence
reduction-18 U.S.C. § 3582(c)(1)(A)." (Pet. ¶
12). Petitioner requested the following relief: "A
recommendation for his life sentence to be reduced to 40,
[North Carolina Mutual Agreement Parole Program ("MAPP)]
Contract and Adult Parole and Honor Grade Relief."
(Id. p. 16).
subsequently filed a motion to dismiss pursuant to Rule
12(b)(6) arguing that petitioner's grounds for relief are
non-cognizable and that petitioner failed to exhaust his
state court remedies. Although petitioner was notified of
respondent's motion, he did not respond.
Motion to Dismiss
Standard of Review
motion to dismiss under Rule 12(b)(6) determines only whether
a claim is stated; "it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party v.
Martin. 980 F.2d 943, 952 (4th Cir. 1992). A claim is
stated if the complaint contains "sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face.' " Ashcroft v.
Iqbal. 556 U.S. 662, 677 (2009) (quoting Bell
Atlantic Corp. v. Twombl v. 550 U.S. 544, 570 (2007)).
In evaluating whether a claim is stated, "[the] court
accepts all well-pled facts as true and construes these facts
in the light most favorable to the [petitioner], " but
does not consider "legal conclusions, elements of a
cause of action, . . . bare assertions devoid of further
factual enhancement[, ] . . . unwarranted inferences,
unreasonable conclusions, or arguments." Nemet
Chevrolet. Ltd. v. Consumeraffairs.com. Inc.. 591 F.3d
250, 255 (4th Cir. 2009) (citations omitted). In other words,
this plausibility standard requires a petitioner to
articulate facts, that, when accepted as true, demonstrate
that the petitioner has stated a claim that makes it
plausible he is entitled to relief. Francis v.
Giacomelli. 588 F.3d 186, 193 (4th Cir. 2009)
(quotations omitted). 2. Analysis a. Parole-Related Claims
Petitioner seeks a reduction in his sentence pursuant to 18
U.S.C. § 3582(c)(1)(A), based upon his advanced age,
time served in prison, and contention that he no longer is a
danger to his community. (Pet. ¶ 12). The federal
statute permitting compassionate releases, 18 U.S.C. §
3582(c)(1), applies to federal sentences and not state
sentences. See 18 U.S.C. § 3582; Carter v.
Pate.No. 8:10-525-HMH-BHH, 2010WL 1643286, at *3 (D.S.C. Apr.
22.2010). appeal dismissed. 420 Fed.Appx. 294 (4th
Cir. 2011). Petitioner has a state, and not a federal,
sentence. Thus, § 3582 is inapplicable to
petitioner's sentence, and respondent's motion to
dismiss is GRANTED as to this claim.
requests that his sentence be reduced to forty years, that he
be provided with a MAPP contract, that he receive adult
parole, and that he receive honor grade relief. (Pet. p. 16).
"There is no constitutional or inherent right of a
convicted person to be [paroled] before the expiration of a
valid sentence." Greenholtz v. Inmates of Neb. Penal
& Corr. Complex. 442 U.S. 1, 7(1979). Even if a
parole statute creates a liberty interest, an inmate is
entitled to only "minimal procedure." Vann v.
Anselone. 73 F.3d 519, 522 (4th Cir. 1996). The Fourth
Circuit has held it is sufficient for the parole authorities
to furnish the prisoner with a statement of reasons for the
denial of parole. Id; see also Wilson v. Mann.
5:08-CT-3053-BO, 2009 WL 9073078, at *2 (E.D. N.C. Aug. 25,
2009), affd. 361 Fed.Appx. 496 (4th Cir. 2010). A
federal court must not involve itself in "the merits of
either the state's parole statute or its individual
parole decisions." Id.
petitioner has alleged no facts to suggest that he is not
receiving the minimal parole procedures to which he is
entitled. Petitioner further does not allege any facts
whatsoever to support his claims. Rather, petitioner makes a
baseless plea for a reduction in sentence, parole, a MAPP
contract, or Honor Grade classification. Petitioner's
conclusory allegations are insufficient to withstand
respondent's motion to dismiss. See Ashcroft.
556U.S. at 681 (citation omitted); see, e.g.,
White v. White. 886 F.2d 721, 723 (4th Cir. 1989)
(stating minimum level of factual support required); see
also. Goble v. Bounds. 13 N.C.App. 579, 583, 186 S.E.2d
638, 640 ("We conclude that honor grade status, work
release privilege, and parole are discretionary acts of grace
or clemency extended by the State as a reward for good