                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                    FILED
Jesse Lee Beavers,                                                               June 17, 2019
Petitioner Below, Petitioner                                                    EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
vs) No. 18-0051 (Pleasants County 17-P-39)

Russell Maston, Superintendent,
St. Mary’s Correctional Center,1
and the West Virginia Parole Board;
Respondents Below, Respondents


                               MEMORANDUM DECISION
        Petitioner Jesse Lee Beavers, pro se, appeals the December 29, 2017, order of the Circuit
Court of Pleasants County denying his petition for a writ of habeas corpus in which he challenged
Respondent West Virginia Parole Board’s (“Board”) September 13, 2017, decision to deny him
release on parole. The Board, by counsel Keith D. Fisher, filed a summary response in support of
the circuit court’s order.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        Petitioner received a sentence of ten to forty years of incarceration for second-degree
murder with an effective sentence date of September 4, 2007. The Board held petitioner’s first
parole interview on September 13, 2017. At the interview, petitioner stated that he was consuming
drugs with his friend and killed his friend when he refused to give petitioner more drugs. The

       1
        Since the filing of the appeal in this case, the superintendent at St. Marys Correctional
Center has changed and the superintendent is now Russell Maston. The Court has made the
necessary substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure. Additionally, effective July 1, 2018, the positions formerly designated as “wardens”
are now designated “superintendents.” See W.Va. Code § 15A-5-3.
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Board noted that petitioner possessed an extensive criminal history, consisting of several dismissed
charges and one prior felony conviction for breaking and entering. Petitioner attributed his criminal
activity to the need to steal money or property to sell, so he could support his drug habit. Petitioner
acknowledged that he completed a term of probation approximately five months prior to his
murder of his friend.

        The Board noted that, during his terms of incarceration, petitioner had a number of prison
disciplinary violations. Petitioner responded that not all of the disciplinary violations were
committed during his current term of incarceration. However, the Board informed petitioner that
disciplinary violations from each term of incarceration were “totaled” together for its consideration
of whether to release petitioner on parole. The Board noted that the most recent disciplinary “write-
up” from petitioner’s current term of incarceration was dismissed. Also, at the parole interview,
members of petitioner’s and the victim’s families spoke for and against petitioner’s release on
parole. After the victim’s family spoke, the Board allowed petitioner an opportunity to respond.
Thereafter, the Board noted petitioner’s substantial educational attainment during his
incarceration, encouraged him to maintain a good record during the next year, and denied petitioner
parole at the September 13, 2017, hearing. In a written decision dated the same day, the Board
found that petitioner’s extensive criminal history “indicate[d] a substantial risk of continuing
criminal behavior” and that he should maintain “a clear conduct record prior to [his] next hearing.”
The Board scheduled petitioner’s next parole interview for September of 2018.

        Petitioner subsequently asked the Board to reconsider the denial of parole. By letter dated
October 10, 2017, the Board’s chairperson denied petitioner’s request. On December 5, 2017,
petitioner filed a petition for a writ of habeas corpus, alleging that the September 13, 2017, parole
interview failed to meet minimum due process standards for such hearings and that the Board’s
decision to deny him parole was arbitrary and capricious. By order entered December 29, 2017,
the circuit court rejected petitioner’s claims, finding that the Board “provided the basic elements
of [d]ue [p]rocess to . . . petitioner” and that “it is the [Board’s] job . . . to ensure that he is not
released [on parole] until public safety can be assured.”

        On January 22, 2018, petitioner appealed the circuit court’s December 29, 2017, order
upholding the Board’s September of 2017 denial of parole. On September 10, 2018, the Board
held petitioner’s 2018 interview and denied parole a second time.2 In Vance v. Holland, 177 W.Va.
607, 355 S.E.2d 396 (1987), we determined that a subsequent parole interview did not render a
challenge to a past denial of parole moot. Id. at 609-11, 355 S.E.2d at 398-99. In Vance, we found
that the inmate’s statutory right to an annual parole interview had been violated for an effective
period from 1975 to 1986. Id. at 610, 355 S.E.2d at 398. Accordingly, we concluded that the 1986
parole interview did not “fully correct” the prejudice suffered by the inmate from being improperly
denied prior annual interviews because, in the 1986 hearing, the Board denied parole to the inmate
based, in part, on disciplinary infractions “which occurred during years when access to the Board
was denied.” Id. at 610-11, 355 S.E.2d at 399. We find that this case is similar to Vance in that
petitioner argues that the Board denied him parole based, in part, on disciplinary infractions that

       2
        We take judicial notice of the Board’s September 10, 2018, parole decision. We note that
the Board scheduled petitioner’s next parole interview for September of 2019.
                                                   2
should be disregarded because the 2017 parole interview failed to meet one of the minimum due
process standards set forth in syllabus point four of Tasker v. Mohn, 165 W.Va. 55, 267 S.E.2d
183 (1980). With that in mind, we address the merits of petitioner’s appeal.

       We apply the following standard of review in habeas appeals:

               “In reviewing challenges to the findings and conclusions of the circuit court
       in a habeas corpus action, we apply a three-prong standard of review. We review
       the final order and the ultimate disposition under an abuse of discretion standard;
       the underlying factual findings under a clearly erroneous standard; and questions
       of law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va.
       417, 633 S.E.2d 771 (2006).

Syl. Pt. 1, Anstey v. Ballard, 237 W.Va. 411, 787 S.E.2d 864 (2016).

       On appeal, petitioner argues that the September 13, 2017, parole interview failed to meet
minimum due process standards for such hearings because the Board confronted him with “false
and misleading” information. The Board notes that petitioner’s argument is somewhat difficult to
follow, but argues that his complaint about “false and misleading” information falls under the
second due process standard established in syllabus point four of Tasker. There, we held:

               Due process requires that parole release interview processes include the
       following minimum standards: (1) [e]ach prospective parolee must be given timely
       and adequate notice of the date and hour of his parole release interview; (2) [a]n
       inmate is entitled to access to information in his record which will be used to
       determine whether he receives parole (absent overriding security considerations
       which must be recorded in his file); (3) [e]ach inmate may personally appear before
       the parole board and give oral and documentary evidence; (4) [a] record, which is
       capable of being reduced to writing, must be made of each parole release interview
       to allow judicial review; and (5) [i]nmates to whom parole has been denied are
       entitled to written statements of the reasons for denial.

165 W.Va. at 55, 267 S.E.2d at 184. We find that requirements (1), (3), (4), and (5) of syllabus
point four of Tasker were met by the Board. Specifically, petitioner received adequate notice of
the date and time of his 2017 parole interview, personally appeared at that interview, which was
recorded in a manner capable of being reduced to writing, and received a written decision of the
Board’s denial of parole. Therefore, we conclude that every applicable due process standard other
than the second was indisputably satisfied.

        The second due process standard set forth in Tasker generally requires that an inmate have
“access to information in his record which will be used to determine whether he receives parole[.]”
Id. Petitioner argues that he was surprised at the 2017 parole interview by “false and misleading”
information. We find that petitioner’s argument is contradicted by the September 13, 2017, audio-
recording. During its questioning of petitioner, the Board stated that petitioner had access to “[his]
record” and petitioner did not object to the Board’s statement as being incorrect. Furthermore, we
                                                  3
find that the only “false and misleading” information the Board allegedly considered was the
disciplinary “write-up” from petitioner’s current term of incarceration that was dismissed.
Petitioner has provided records that show the “write-up” was dismissed because he had been
confused with another inmate with the same last name. Petitioner argues that the Board failed to
allow him to proffer the reason for the “write-up’s” dismissal. The Board counters that the
September 13, 2017, audio-recording clearly reflects that the Board informed petitioner that the
report regarding the “write-up” had been read. Based on our review of the record, we conclude
that the Board understood that the dismissed “write-up” did not regard petitioner.

        Petitioner further argues that the Board should not have considered disciplinary violations
committed during his first term of incarceration that he had already served prior to the offense for
which he is now incarcerated. The Board counters that West Virginia Code § 62-12-13(l)(1)(A)
required it to consider all of petitioner’s disciplinary violations that were proven. West Virginia
Code § 62-12-13(l)(1)(A) provides that, in its consideration of parole, the Board “shall have . . .
written reports . . .: (A) On the inmate’s conduct record while in custody, including a detailed
statement showing any and all infractions of disciplinary rules by the inmate and the nature and
extent of discipline administered for the infractions.” (Emphasis added.). We note that, when
petitioner raised this issue at the September 13, 2017, parole interview, the Board clearly informed
petitioner that it could consider all proven disciplinary violations. Therefore, we conclude that
petitioner fails to show that it was a violation of due process for the Board to have considered all
such disciplinary violations.

        Finally, petitioner challenges the Board’s 2017 denial of parole as arbitrary and capricious.
In syllabus point three of Vance, we held:

               “The decision to grant or deny parole is a discretionary evaluation to be
       made by the [Board]. However, such a decision shall be reviewed by this Court to
       determine if the [Board] abused its discretion by acting in an arbitrary and
       capricious fashion.” Syl. pt. 3, Rowe v. Whyte, 167 W.Va. 668, 280 S.E.2d 301
       (1981), quoting Tasker[, 165 W.Va. at 67, 267 S.E.2d at 190].

177 W.Va. at 608, 355 S.E.2d at 397. Petitioner argues that the Board relied too heavily on his
extensive criminal history and the victim’s family’s opposition to his release on parole. Petitioner
further argues that, in Rowe, we found that the Board disproportionately focused on that inmate’s
criminal history and gave only superficial consideration to the other factors that West Virginia
Code § 62-12-13 required it to consider. See 167 W.Va. at 676, 280 S.E.2d at 305. For example,
we found in Rowe that there was nothing “to indicate that the [Board] considered [the inmate’s
disciplinary] record,” as required by West Virginia Code § 62-12-13,3 or that the inmate “violated
any prison rules.” 167 W.Va. at 676-77, 280 S.E.2d at 306.
        Petitioner’s case is distinguishable from Rowe in that the Board considered petitioner’s
disciplinary record that contained proven violations of prison rules. We find that the Board did not
deny parole because it disproportionately focused on petitioner’s criminal history. Rather, the

       3
       At the time of our decision in Rowe, the pertinent provision was codified at West Virginia
Code § 62-12-13(d)(1). See 167 W.Va. at 676, 280 S.E.2d at 306.
                                                 4
Board found that petitioner’s conduct while incarcerated, including positive aspects such as his
educational attainment, was insufficient to show that he would not “constitute a danger to the
community.” W.Va. Code § 62-12-13(b)(4). As petitioner admitted to the Board, he completed a
term of probation approximately five months prior to his murder of his friend. Therefore, based on
our review of the record, we find that the Board’s 2017 denial of parole was not arbitrary and
capricious. Accordingly, we conclude that the circuit court did not abuse its discretion in denying
petitioner’s habeas petition.

        For the foregoing reasons, we affirm the circuit court’s December 29, 2017, order denying
petitioner’s petition for a writ of habeas corpus and upholding the Board’s 2017 decision to deny
him release on parole.

                                                                                       Affirmed.

ISSUED: June 17, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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