Tate v. Hogan

BRIAN ARTHUR TATE v. GOVERNOR LARRY HOGAN, et al.

No. 537

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2020

July 12, 2021

Circuit Court for Howard County

Case No. C-13-CV-19-000237

UNREPORTED

Kehoe, Leahy, Friedman, JJ.

Opinion by Friedman, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant Brian Arthur Tate appeals the denial, by the Circuit Court for Howard County, of his petition for writ of habeas corpus. In his timely appeal, Tate, representing himself, argues that States must provide "juvenile lifers," like himself, a meaningful opportunity to obtain release from prison based on demonstrated maturity and rehabilitation. Tate argues that Maryland's parole system does not provide him that meaningful opportunity and is therefore unconstitutional.¹ For the reasons that follow, we affirm the circuit court's denial of Tate's petition for writ of habeas corpus.

BACKGROUND

In November 1992, Tate, then aged 16, pleaded guilty to first-degree murder in the stabbing death of a 19-year-old rival for his ex-girlfriend's affection.² He was sentenced to life in prison with the possibility of parole, becoming what is known as a "juvenile lifer."

Tate became eligible for parole in 2002. Although a parole hearing was scheduled for August 2003, Tate requested a postponement because he believed he had no chance of having his parole application approved. The hearing was postponed indefinitely.

In 2016, the Maryland Parole Commission ("the Parole Commission") amended its regulations to require the consideration of additional factors specific to juvenile lifers inparole determinations. See CODE OF MARYLAND REGULATIONS ("COMAR") 12.08.01.18A(3). The Parole Commission offered Tate a parole hearing, during which the new factors would be considered.

By all accounts, Tate had worked hard in prison to continue his education and rehabilitate himself. He was given jobs with increasing degrees of responsibility, he did not commit any major disciplinary infractions, and he avoided involvement with drugs and gangs. Thus, finally believing he had an opportunity to prevail, Tate appeared for his first parole hearing on June 6, 2017.

Commissioners Steven DeBoy and Christopher Reynolds praised Tate's increased maturity and progress in therapy, and referred his case to the Parole Commission's psychologist for a risk assessment, leading Tate to believe that if the assessment came back positively, he would be recommended for parole before the entire Parole Commission.³ Based on the risk assessment and "consideration of all factors, and the nature and circumstances of this horrific murder," however, the commissioners determined Tate was a "moderate risk," denied his application for parole, and determined that "a rehearing for November 2021 is warranted."

In March 2019, Tate filed a petition for writ of habeas corpus. Therein, he argued that the commissioners had not properly considered his "juvenile lifer status," and had denied him a "meaningful opportunity for release based on demonstrated growth and maturity," as articulated by the United States Supreme Court in three recent cases: Montgomery v. Louisiana, 577 U.S. 190 (2016); Miller v. Alabama, 567 U.S. 460 (2012); and Graham v. Florida, 560 U.S. 48 (2010). He also took the position that Maryland's parole scheme for juvenile lifers is unconstitutional.⁴

Appellees,⁵ in their answer to Tate's petition, responded that the commissioners had fully considered all the required factors applicable to parole consideration before determining that Tate was "not a suitable candidate for parole at this time." Appellees suggested that the habeas court adopt the reasoning set forth in Bowling v. Director, Virginia Dep't. of Corrections, 920 F. 3d 192 (4th Cir. 2019), in which the United States Court of Appeals for the Fourth Circuit rejected arguments similar to Tate's. Appellees also argued that the Maryland Court of Appeals had already found the State's parole scheme for juvenile lifers to be constitutional in Carter v. State, 461 Md. 295 (2018).

At a hearing on his petition, Tate acknowledged that the Court of Appeals in Carter had determined that Maryland's parole scheme is constitutional, but he argued that it was Chief Judge Mary Ellen Barbera, in her partial dissent, who "got it right" because "[n]ot a single juvenile lifer in this State has been granted parole since the [e]naction of Governor Hogan's Executive Order" in 2018. In denying him parole based solely on the nature of his offense, rather than his positive risk assessment and other attributes, Tate continued, the Parole Commission had not employed a fair test that gave a true measure of a juvenile offender's rehabilitation and maturity. In other words, despite doing everything he possibly could have done to prove he was no longer "that monster who committed that crime [at] 16," he was deemed not worthy of a second chance because all the commissioners saw in denying his application for parole was the "horrific murder" he had committed decades before. That, in his view, was "constitutionally impermissible." In addition, Tate concluded, the Governor's 2018 executive order provides "a type of purely executive clemency," which fails to provide a realistic means to obtain release on parole and is tantamount to life without parole.

The habeas court questioned whether Tate's argument would have been stronger if he had been denied parole several times. If he had been, then he could have argued that, despite having done everything asked of him, the system was rigged against him. That, however, was difficult to prove after a single parole hearing. Moreover, the court pointed out, Tate had not been denied parole on a permanent basis, although it was within the power of the Parole Commission to do so.

In response to a question by the court, appellees' counsel acknowledged that no lifer in her memory had been paroled at his or her first parole hearing, but she denied that the State had enacted a policy of not approving parole for a lifer at the first hearing. In Tate's case, the Parole Commission had considered all the relevant factors—including, but not limited to, the nature of the crime he committed—and granted him another hearing in three years. Because the Parole Commission's decision was not unconstitutional, nor did it comprise an abuse of discretion, appellees asked the court to deny Tate's petition.

The habeas court denied Tate's petition for writ of habeas corpus, noting that Tate was challenging "the result of his first and only parole hearing," and declined to find that the process had not granted him a meaningful opportunity to obtain release. The court further found that the parole commissioners properly exercised their discretion and considered all the relevant factors—not just the nature of his crime—in denying Tate parole.

The court pointed out that if Tate continued in his cognitive programs and remained infraction-free, the Parole Commission might well come to a different conclusion about his suitability for release at his next hearing. Moreover, the habeas court said that if Tate were then denied parole based only on the nature of his offense, or an unchanged risk assessment, "he may have a cognizable habeas claim." But to argue that his Eighth and Fourteenth Amendment rights had been violated after only one hearing "represents an exaggeration of [his] circumstances." And, to the extent that Tate had argued that the parole system operates as one of executive clemency, the argument failed because that claim had been settled in Carter.

DISCUSSION

Pursuant to Maryland Rule 8-131(c), we review a denial of an application for writ of habeas corpus on both the law and the evidence, and we will not set aside the judgment unless it is clearly erroneous. Simms v. Maryland Dep't of Health, 240 Md. App. 294, 311 (2019) aff'd, 467 Md. 238 (2020). "'Under the clearly erroneous standard, [we do] not sit as a second trial court, reviewing all the facts to determine whether an appellant has adequately proven his [or her] case.'" Id. (quoting Liberty Mutual Ins. Co. v. Maryland Auto. Ins. Fund, 154 Md. App. 604, 609 (2004)). Our review is limited to deciding whether the habeas court's factual findings were supported by "substantial evidence" in the record. GMC v. Schmitz, 362 Md. 229, 233-34 (2001) (quoting Ryan v. Thurston, 276 Md. 390, 392 (1975)). In so doing, we view all the evidence "in a light most favorable to the prevailing party." Id.

Over the last ten years, the United States Supreme Court issued a series of decisions addressing the constitutionality of sentencing a juvenile offender to life without the possibility of parole. In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibition on cruel and unusual punishment prohibits a sentence of life without the possibility of parole for a juvenile offender convicted of a crime other than homicide. 560 U.S. 48, 74 (2010). The Court noted that life without parole is an "especially harsh" sentence for a juvenile defendant, as it condemns the juvenile to a larger percentage of the individual's life in prison than an older adult who receives the same sentence. Id. at 70. Importantly, though, the Court stressed that, although "[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime[,]"the sentence imposed must provide "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Id. at 75. The Court did not purport to dictate how a state must provide that opportunity, stating that "[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance." Id.

Two years later, the Supreme Court applied some of the same reasoning to hold that the Eighth...