United States Court of Appeals
For the First Circuit
No. 11-1180
ROLANDO JIMENEZ,
Plaintiff, Appellant,
v.
MARK CONRAD, DORIS DOTTRIDGE, CANDACE KOCHIN, LATICIA MUNOZ,
PAMELA LOMBARDINI, and THOMAS MERIGAN,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
Thomas More Dickinson, with whom Law Office of Thomas M.
Dickinson was on brief, for appellant.
Jennifer L. Sullivan, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for appellees.
May 2, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. In 1982, a Massachusetts jury
found Rolando Jimenez guilty of the parolable offense of second
degree murder for killing a police officer, simultaneously
acquitting him of murder in the first degree, conviction of which
would have carried no possibility of parole. The Massachusetts
Parole Board denied his parole applications in 1999, 2004, and
2009, and he then brought this action under 42 U.S.C. § 1983 for
declaratory and injunctive relief to rectify claimed violations of
rights to due process and equal protection guaranteed by the
Fourteenth Amendment, as well as infringements of guarantees under
the Commonwealth’s counterparts to the federal provisions, as set
out in pendant claims. The defendants are the six members of the
Board, named in their official capacities, each of whom voted to
deny parole.1 The District Court granted their motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim.
The trial judge found specific relief barred by § 1983’s
prohibition of injunctions against “judicial” officers. As to
declaratory relief, the judge held that no federal due process or
equal protection claim was stated and dismissed the state claims in
part because of the disposition of the federal ones. On de novo
review, Schatz v. Republican State Leadership Comm., 669 F.3d 50,
1
No change in Board membership since institution of this suit
is reflected in the case’s caption.
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55 (1st Cir. 2012), we affirm because Jimenez has stated no federal
claim on which relief may be granted.
Due process of law is said to have been denied, first, on
the ground that the board is so far biased against Jimenez because
his victim was a police officer that he has been deprived of a fair
consideration by impartial officers. See Esso Standard Oil Co. v.
López-Freytes, 522 F.3d 136, 145-48 (1st Cir. 2008). The claim
fails because the due process guarantee protects only against
deprivations of life, liberty, or property, and the law has been
settled for over thirty years that a convict has no liberty
interest in being paroled unless the statute providing eligibility
to seek parole is so phrased as to create a positive entitlement if
statutory conditions are met. See Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1 (1979). The Massachusetts
statute raises no such expectation. It provides that no matter how
good an applicant’s prison conduct may have been, parole shall be
granted “only if” the board is of the “opinion” that there is a
“reasonable probability” that the prisoner will not violate the law
if granted a release, which itself must not be incompatible with
the welfare of society. Mass. Gen. Laws ch. 127, § 130. As is
obvious from the language, this negatively phrased statute creates
no entitlement, Lanier v. Mass. Parole Bd., 489 N.E.2d 670, 671
(Mass. 1986), as this Court has recognized, Lanier v. Fair, 876
F.2d 243, 251 n.10 (1st Cir. 1989).
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Nor do we see any possibility of a substantive due
process claim in the complaint. For reasons explained in analyzing
the equal protection issue below, there is nothing arbitrary,
shocking, or even outside the scope of reasonable judgment, see
County of Sacramento v. Lewis, 523 U.S. 833, 845-847 (1998), in
allowing a parole board wide enough discretion to reflect the
specific interests of law enforcement.
We likewise see no due process claim stated on the theory
that the clause incorporates certain enumerated guarantees of the
Bill of Rights. Jimenez did not expressly plead that in the
complaint, and his closest pass at such an issue is an argument
never articulated “face up,” in the district court, Iverson v. City
of Boston, 452 F.3d 94, 102 (1st Cir. 2006), that the Board’s
reported refusal to grant parole is in derogation of his Sixth
Amendment right to jury trial, which in his case resulted in the
parolable second degree murder conviction. We think the
Commonwealth soundly argues that the theory of infringement of the
jury right is unpreserved, see id., but in any event, we would see
no merit in it. There is no basis in the allegations for
construing his claim as one that he has been denied parole because
he exercised his right to trial by jury; his claim is that he is
being unfairly treated because of the identity of his victim, and
that would be the same whether trial had been by jury or judge.
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Finally, we consider an argument that Jimenez does not
assign to one particular due process category or another, but seems
to stand in the borderland of procedure and substance: that a
prior, unsuccessful petition for new trial 24 years after
conviction (claiming that the evidence supported only manslaughter)
was considered as a subject of “concern” and erroneously treated as
a reason for denying parole. He makes this argument on analogy
with North Carolina v. Pearce, 395 U.S. 711 (1969) (mere fact of
appeal and new trial cannot justify higher sentence after retrial);
United States v. Jackson, 390 U.S. 570 (1968) (Congress may not
condition possibility of non-capital sentence on waiver of jury
trial); Griffin v. California, 380 U.S. 609 (1965) (government may
not comment unfavorably on defendant’s silence at trial); and a
related case of this Court, Worcester v. Comm’r, 370 F.2d 713 (1st
Cir. 1966) (court may not offer lesser sentence conditioned on
waiver of appeal).
Leaving aside the fact that only one out of six board
members is said to have held the new trial request against him, the
closest Jimenez comes to support in the cited authority is Pearce.
There, it was clear from the record in one of the consolidated
cases that a higher sentence after a second trial was retaliation
for success in getting the retrial, and in the other case the
higher sentence was not justified by any reference to facts
occurring after the first trial. Here, Jimenez seems to say, the
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Delphic statement of concern about the new trial attempt was
likewise unexplained and should be treated as illegitimate on
analogy with the Pearce line of cases.
We do not think the facts here bear analogy to Pearce,
however. Although it is quite true that the Board member’s comment
was not accompanied by any discussion showing the legitimacy of
“concern” about the new trial attempt, we think it may be fairly
understood as reflecting a reason that the complaint alleges to
have been spelled out in explaining a prior parole denial: that
Jimenez had not come to terms with the proven facts of his own
conduct, that is, that he did not accept responsibility for the
crime that the jury verdict showed he had committed. Jimenez’s
apparently meritless attempt to relitigate his guilt down to
manslaughter could be seen as a further refusal to face the facts
the jury had found. This is a reasonable consideration, addressed
every day by courts in calculating criminal sentences, and having
a bearing on the chance of recidivism that the Massachusetts parole
statute required the Board to address. Therefore, although a
successful attempt to obtain a new trial could not be held against
him consistently with due process, alleging consideration of an
unsuccessful effort by a prisoner previously found wanting in
facing up to the reality of his crime does not state a plausible
claim of illegitimate, unfair administrative reasoning. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007).
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That leaves the equal protection claim, and as to that we
think the allegations at least raise the specter of pretextual
reasoning by the Board that, standing alone, makes one suspect that
the Board is placing Jimenez in a category it is reluctant to
disclose. Jimenez has pleaded some specific examples of paroled
second degree murder convicts with worse disciplinary records than
his own, which are enough to raise questions about the Board’s
candor if the allegations are true about the Board’s reliance on
his own less serious prison misconduct in denying prior parole
requests.
We nonetheless think that it is otherwise clear that the
complaint is inadequate to state an equal protection violation.
The claim here is not that pretext equals a denial of equal
protection but that a record of pretext, as well as the more
straightforward indications of board members’ thinking, are
evidence that Jimenez is receiving less favorable parole treatment
because his victim was a police officer. And that, if true, does
not violate the Equal Protection Clause. A state may rationally
take the position that a law enforcement officer’s constant
exposure to violence calls for a more powerful deterrent to
homicidal behavior than the general laws of homicide provide. See
generally Toledo v. Sánchez, 454 F.3d 24, 33 (1st Cir. 2006)
(citing Heller v. Doe, 509 U.S. 312, 319 (1993)), cert. denied sub
nom. Univ. of P.R. v. Sánchez, 549 U.S. 1301 (2007). Thus,
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statutes imposing heavier penalties for harming an officer are not
uncommon,2 and Jimenez does not argue that they represent
unconstitutional classifications.
In this instance, of course, the more onerous treatment
is alleged to result from the administrative practice of a parole
board, not from a legislative classification, but Jimenez’s
pleadings and briefs give us no reason to think that this should
make any difference as a federal constitutional matter. The
Board’s extensive discretion has been noted, and nothing in its
statutory authorization could give rise to any expectation on the
part of a police officer’s murderer that the Parole Board should
ignore the law enforcement occupation of a victim. This is not to
say that administrative discretion is the optimal mechanism for
making the classification alleged here, but Massachusetts can
choose to rely on administrative policymaking if it wishes to.
We recognize that Jimenez’s response to this conclusion
is that Massachusetts has not left the Board with authority to
classify convicts like himself as categorically ineligible for
parole for all time. Their victims may have been officers, but
their crimes are second degree murder, which carries the
opportunity for parole. He would thus argue on the authority of
Greenholtz, 442 U.S. at 14-16, that he has at least stated a claim
2
See, e.g., Del. Code Ann. tit. 11, § 636; N.H. Rev. Stat.
Ann. § 651:6; Or. Rev. Stat. § 163.095; 18 Pa. Cons. Stat. § 3301.
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for a declaration that he has a constitutional entitlement to
serious consideration for parole sometime. But we think the
complaint falls short of factual allegations that reach the point
of plausibility in claiming that the Board is following a policy of
permanently barring parole to Jimenez because his victim was an
officer, or to all such convicts. While each of those conclusions
is a possibility on the facts alleged, that is not enough. See
Bell Atl., 550 U.S. at 555-57. In the absence of an announced
policy of absolute ineligibility, stating such a claim would
require more extensive reference to the Board’s actions and the
records of parole applicants than anything in the complaint. And,
of course, we mean to imply nothing about the proper result even of
plausible allegations of categorical ineligibility, given the
statutory parole structure in Massachusetts.
Because the complaint states no federal constitutional
claim upon which relief could be granted, each federal claim was
properly dismissed with prejudice, and the annexed state law claims
were likewise dismissed, but without prejudice.
Affirmed.
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