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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX TYDEL JOHN 7 PETITIONER l SX 19 MC 33 v PETITION FOR WRIT OF HABEAS 7 CORPUS WYNNIE TESTAMARK DIRECTOR OF ' THE U S VIRGIN ISLANDS BUREAU OF P CORRECTIONS GOVERNMENT OF THE ‘ VIRGINISLANDS ETAL , RESPONDENTS , Cite as 2021 VI SUPER U96 Mr Tydel John #14 3826 CCA/Citrus County Detention Facility #2604 West Woodland Ridge Dr Lecanto Florida 34461 Attorney Ian S A Clement, Esq , Assistant Attorney General Vixgin Islands Depdltment of Justice #34 38 Kronprindsens Gade GERS Complex 2nd Floor St Thomas USV100802 MEMORANDUM ORDER ‘11 1 THIS MATTER is before the Court on the Petition of Tydel John (hereinafter Petitioner) seeking a Writ of Habeas Corpus Because the Petitioner has failed to allege facts Which show that he is being unlawfully restrained in Violation of a constitutional or statutory right the petition is DENIED Tydel John v Wmme Testathark VI SUPER U96 Petmon for Habeas Corpus 3X 19 MC 033 PageZ FACTUAL BACKGROUND ‘1 2 In December 2007 Petitioner was arrested and subsequently charged in an information with various offenses relating to sexual conduct involving minors After a tria} conducted from August 28 2012 through September 14 2012 a Jury found the Petitloner guilty of six counts of First Degree Unlawful Sexual Contact one count of First Degree Aggravated Rape and one count of Child Abuse Petitioner filed a motion for Judgment of acquittal which the Court granted in part by dismissing the other Child Abuse charges but denied with respect to all other counts The Court sentenced the Petitioner to fifteen (15) years incarceration on each of the convictions for First Degree Unlawful Sexuai Contact and fifty (50) years incarceration on the conviction for First Degree Agglavated Rape One count of Unlawlul Sexual Contact was held in abeyance to be dismiseed upon completion of the sentence pursuant to Tit 14 VI C § 104 The sentences for the Unlawful Sexual Contact were to be served concurrently and were also to run concurrent with the sentence for First Degree Aggravated Rape The Courts sentence was memorialized in an order of Judgment and Commitment entered on June 20 2014 Petitioner appealed his conviction and sentence to the Virgin Islands Supreme Court The Supreme Court in a memorandum opinion issued on September 24 2015 affirmed the conviction and sentence but 2 Tydel John v Wmme Testamark VI SUPER U96 Petition for Habeas Corpus SX 19 MC 033 Page3 noted that due to a scriveners error the Judgment and Commitment order misidentified the sentence imposed for count 7 Unlawful Sexual Contact as the sentence imposed for count 3 Child Abuse and failed to state that count 8 Child Abuse was dismissed (II 3 In response to the Supreme Courts finding of error the Superior Court entered an amended order of Judgment and Commitment on June 6 2016 Nunc Pro Tune June 20 2014 CH 4 Petitioner began serving his sentence at the Golden Grove Correctional Facility and was later transferred to Citrus County Detention Facility where he is currently incarcerated Petitioner filed this petition for Writ of Habeas Corpus alleging that the Virgin Islands Bureau of Corrections ( BOC ) has miscalculated his credits for pretrial detention and parole eligibility date thereby depriving him of his liberty to palole eligibility THE LEGAL STANDARD ‘31 5 Every person unlawfully imprisoned 0r restrained of his liberty under any pretense whatever may prosecute a writ of habeas corpus to inquire in into the cause of such imprisonment or restraint Tit 5 VI C §1301 (ll 6 Title 5 §4601 of the Virgin Islands Code provides Except for a prisoner sentenced to a term of life imprisonment Without parole every prisoner confined to any pemtentiary Jail 0r prison for a violation of Virgin Islands Law for a definite term or terms 3 Tydel John v "lllllle Testamark VI SUPER U96 Petition for Habeas Corpus SX 19 MC 033 Page4 of over 180 days or for the term of his natural life whose record of conduct shows that he has observed the rules of the institution in Which he is confined upon recommendation of the Director of the Bureau of Corrections supported by the recommendation of a psychiatrist and/or psychologist may be released on parole after serving one half of such term or terms or after serving fifteen (15) years of a life sentence or of a sentence of thirty [30) years or more or after serving minimum sentence required by law whichever is greater provided however that the Board of Parole in its discretion by at least a two thirds affirmative vote of all its members upon recommendation by the Directors of the Bureau of Corrections supported by the recommendation of a psychiatrist and/or physiologist is authorized to fix an earlier eligibility date for the release of a prisoner on parole after serving one third of his term or terms or after serving ten (10) years of a life sentence or of a sentence of thirty (30) years or more (ii 7 The Court must issue an order granting a writ of habeas corpus if the petitioner has alleged prima facie grounds showing entitlement to relief and the Claims are not legally barred VI Hab Corp R 2{d)(1) A petition states a prima facie case if it aileges facts which if true entitie the petitioner to relief VI Hab Corp R 2(b)(1) ANALYSIS A. Section 4601 Does Not Create a Right to Parole (ll 8 Under Virgin Islands law habeas corpus is available to provide redress for unlawful confinement or restraint of liberty in Violation of an individuals Constitutional or statutory rights In order for a writ of habeas corpus to be granted the Petitioner must show deprivation of a constitutional or statutory created right and such deprivation imposes an unlawful restraint on his liberty Here the Petitioner alleges that the 4 Tydel John v Wmme Testamark V] SUPER U96 Petitionfor Habeas Corpus 5X 19 MC 033 Page5 miscalculation of his parole eligibility date constitutes a deprivation of his right and places an unlawful restraint on his liberty More particularly the Petitioner states that the BOC has calculated his parole eligibility date in a manner which makes him eligible for parole after having served twenty five (25) years or half of his fifty (50) year sentence rather than after having served fifteen (15] years of a sentence of thirty (30) years or more Section 4601 states that a person may be released on parole after serving half the term of his sentence or after serving 15 years of a life sentence or a sentence of 30 years or more or after serving the minimum sentence required by law whichevei is greater 5 VI C § 4601 Apparently the BOC interprets the statute in a way that allows the BOC to choose the greater of all the available options This Court agrees that to the extent that the BOC applies this formula to calculate the Petitioners paiole eligibility date it is inaccurate A prisoner sentenced to a term of mole than 30 yeais of iiiiplisomnent will become eligible for parole after serving 15 years unless the crime of which he or she is convicted carfies a greater minimum penalty Martinez 0 COL t of the VI 2016 V I LEXIS 201 at 10 (Super Ct 2016) (finding that the interpretatlon of the statute which allows the BOC to apply a formula by which it chooses the greater of the three options for determining parole 5 Tydel John v Wmme Testamurk V] SUPER U96 Petztton for Habeas Corpus SX 19 MC 033 eligibility leads to results that am inconsistent with the intent of the Legislature‘) (II 9 The Petitioner has no constitutional or statutory right to parole The Virgin Islands Supreme Court has held that the Virgin Islands statutory mechanism for parole eligibility does not create a right to be released on parole There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence Smith v Employees of the Bureau of Corrections 64 VI 383 386 (VI 2016) (citing Greenholtz v Inmates of Nebraska Penal & Correction Complex 442 US l 7 (1979) The Court further states a right for parole review or eligibility may be created by statute but the statute must be mandatory rather than discretionary Id at 387 The Court concluded that section 4601 is discretionary and not a mandate to the BOC to determine and g1 ant paxole ‘11 10 It is clear that section 4601 git es the BOC the discretion to determine whether a prisoner has met the good conduct requirements and has served the portion of his sentence in a manner that meets parole eligibility requirements Under Section 4601 parole eligibility is subject to the recommendation of the Director of the Bureau of Corrections ‘ In M(nque thL Court nottd that the f01muld whereby [ht Bureau LhOUSBS the greater 0! halt 01 the semen“ 15 years 0! a scntenu 0t 30 years or more and the minimum sentence 1Lquired b) {aw would make the 15 yea: eligibility proxision USLILSS and lead to absurd results For instance exer) sententc greater than 30 years would lead to a calculation beyond the 13 year eligibilit) provision Moreover a prisoner sentenced to life will become eligible for parole after 15 years but a prisoner sentenced to a term of greater than ‘40 years for a less egregious offense will not be eligible for parole in 15 years The legisiature could not haw: intended these inconsistent results 6 TydelJohn v Wmme Testamark VI SUPER U96 Petitionfor Habeas Corpus SX 19 MC 033 supported by the recommendation of a psychiatrist and/or psychologist The statute does not create a right to parole eiigibility or review but grants corrections officials the discretion to determine parole eligibility Therefore Petitioner cannot claim the deprivation of such a right B The Facts do not Support Unlawful Confinement or Restraint ‘11 11 Petitioner is in the custody of the BOC serving a lawful sentence pursuant to his conviction for criminal offenses Petitioner seeks habeas corpus relief on the premise that BOC s miscalculation 0f the time of his pretrial detention and his parole eligibility date constitutes an unlawful restraint on his liberty Even if the Court were to require BOC to calculate the date that Petitioner could be eligible for parole based on the serving of 15 years with credit for time served in pretrial detention Petitioner will still not be eligible for a parole hearing until the Director recommends it 10 be eligible tor parole Petitioner must satisty certain statutory requirements which include the official determination of his good conduct and the recommendation of the Director These are the requirements which trigger Petitioners parole eligibility and not the term of Petitioners sentence or the amount of time he has served on his sentence Accordingly Petitioners claim of the denial of a right and an unlawful restraint on his liberty by an inaccurate parole eligibility 7 Tydel John v Wmme Tatar: k V! SUPER U96 Petition for Habeas Corpus SX 19 MC 033 Page8 calcuiation does not mature until the statutory requirements have been satisfied ‘11 12 Incidentally Petitioner does not allege that he has met the requirements which trigger his parole eligibility so that the 8005 miscalcuiation is the only restriction to his access to a parole hearing Therefore Petitioner is not entitled to a writ of habeas corpus because he has failed to allege facts that would establish that he has a right to a parole hearing or to be considered for parole Edwards v Mullgrav 2017 VI LEXIS 139 at *9 [Super Ct 2017) C Petitioner Has Not Served the Time to Trigger Parole Eligibility CH 13 Quite apart from the fact that Petitioner has failed to satisfy the statutory prerequisites which would qualify him for parole consideration Petitioner has not served the necessary time on his sentence Petitioner began Strung his sentence on 01 about Septembei 14 2012 Up to this point Petitioner would haxe sorted approximately nine years of the sentence Petitioner claims four years two months and eight days as credit for time served in pretrial detention Even with credit for time served according to Petitioners calculation Petitioner would not have served the portion of his sentence that would statutorily make him eligible for parole review2 Since Petitioners eligibility for parole review The facts essential to an accurate caiculation of the Petitioner s time in pretrial detention are not at ailable to the Court Therefore the Court makes no finding on the accuracy of Petitioner s calculations 8 Tydel John v Wmme Testainark V] SUPER U96 Petitionfor Habeas Corpus 3X 19 MC 033 Page9 has not materialized under the provisions of the statute it cannot be said that Petitioner is confined under an unlawfui restraint Petitioners claim is that the BOCS calculations are inaccurate If that claim is correct Petitioner may pursue other means of challenging the inaccuracy Petitioners claim is not a proper subject for habeas corpus relief Conclusion (It 14 The crux of the Petitioners claim is that the BOC has inaccurately calculated his time in pretrial detention and has determined that he is eligible for parole review after serving half his sentence which amounts to twenty five (25) years Petitioner contends that these inaccuracies constitute a restraint on his parole eligibility because he is eligible for parole after serving fifteen (1‘5) years Tit ‘5 VIC § 4601 permits the BOC t0 detennine paiole eligibility based certain [actors which include good bchaxior credits and the recommendation of the Director Even if Petitioners allegations are true there is nothing to indicate that the Bureau of Corrections is unlawfully restricting the Petitioner of his liberty through the violation of a constitutional or statutory right Petitioner failed to state a prima facie case showing an entitlement to Habeas Corpus relief Accordingly it is 9 Tydel John v Wmme Testamark VI SUPER U96 Petltum for Habeas Corpus SX 19 MC 033 ORDERED that the petition for Writ of Habeas Corpus is hereby DENIED DONE AND SO ORDERED this 22nd day of September 2021 HONORABLE J0M0 MEADE JUDGE OF THE SUPERIOR COURT A T T E S T TAMARA CHARLES Clerk of the Court BY‘c Mr ““ C0 t L731: H567” \ (7202/9001! 10