United States District Court, W.D. Kentucky
CHARLES R. SIMPSON III, UNITED STATES DISTRICT SENIOR JUDGE.
Fryar filed a pro se petition for a writ of habeas corpus
under 28 U.S.C. § 2241, ECF No. 1. Warden Aaron Smith
answered, ECF No. 12. Fryar did not reply. The magistrate
judge made findings of fact, conclusions of law, and a
recommendation that Fryar's petition be dismissed with
prejudice and that Fryar be denied a certificate of
appealability. R. & R., ECF No. 13. Fryar makes two
objections to the magistrate judge's analysis: (1) he
argues that the magistrate judge misconstrued his petition as
a 28 U.S.C. § 2254 petition, rather than one under 28
U.S.C. § 2241; and (2) he objects to the magistrate
judge's interpretation and use of Carpenter v.
Department of Corrections, No. 3:11-42-DCR, 2012 WL
2021718 (E.D. Ky. June 5, 2012). Obj. R. & R. 1-3, ECF
reasons below, the Court will adopt the magistrate
judge's report and recommendation in full. The Court will
deny Fryar's petition for a writ of habeas corpus. The
Court will deny Fryar a certificate of appealability.
Findings of Fact
of 2000, Fryar pled guilty to various charges of sodomy and
sexual abuse in Boone County, Kentucky Circuit Court, and he
was sentenced to a 20-year term of imprisonment. R. & R.
1, ECF No. 13. From January 2001 until early September 2010,
Fryar was a resident at the Eastern Kentucky Correctional
Complex (EKCC), where he claims he was a “model
prisoner” who lived in the honor dorm for approximately
4 ½ years. Id. at 2. In 2010, Fryar was
transferred to the Kentucky State Reformatory (KSR).
16, 2013, following his transfer, Fryar wrote a letter to
Warden Gary Beckstrom requesting meritorious good time
credits for his time spent at EKCC. Id. On July 19,
2013, Warden Beckstrom wrote a memorandum to Fryar,
explaining that prison policy prohibited him from
re-evaluating the decision of the prior warden at EKCC
concerning the award or denial of meritorious good time.
sought administrative appellate review of Warden
Beckstrom's decision through the Kentucky Department of
Corrections (KDOC) Office of Offender Information Services
(OIS) as required by Corrections Policies and Procedures
(CPP) 17.4. Id. On December 11, 2013, OIS Branch
Manager Ashley Sullivan wrote a letter informing Fryar that a
change in Kentucky Revised Statutes § 454.415 required
Fryar to first contact the OIS staff at his institution
before taking the appeal to the Central Office. Id.
December 19, 2013, Fryar wrote to the OIS staff at his
institution to request meritorious good time for his time
spent at EKCC. Id. at 3. On December 26, 2013, OIS
Specialist William Mustage wrote:
Please understand that Meritorious Good Time (MGT) is a
privilege, not a right. Even though a person may be eligible
to be reviewed for MGT, this does not guarantee an award. KRS
197.045 gives the Commissioner discretion in awarding MGT.
The commissioner has extended that discretion to the
institutional staff. The Warden is the person at any
institution whom will either approve or disapprove any MGT
that is recommended by program staff. Just because a program
staff member recommends MGT does not guarantee that the
individual will receive it. You were denied MGT for the time
period in question for non-program participation and blocked
for a period of twelve (12) months) [sic] on more than one
Upon consideration from Warden Clark Taylor, it has been
decided to not lift the MGT block/denial which was placed
while you were housed at the Eastern Kentucky Correctional
Complex. Following the original denial and KSR's
consideration, it is recommended that you contact the Warden
at that institution where it was originally denied or
blocked, as he/she may also choose to reconsider it.
Id. On January 2, 2014, Fryar against sought
administrative review of this decision under CPP 17.4.
Id. On January 27, 2014, Sullivan wrote back,
informing Fryar that she had reviewed Mustage's response
and concurred with his findings. Id. She advised
Fryar of his right to appeal her decision to the sentencing
court within thirty days of exhausting his administrative
remedies under Kentucky Revised Statutes § 532.120(8).
March 11, 2014, Fryar moved under Kentucky Revised Statutes
§ 532.120(8) for an order directing application of
meritorious good time credits in the Boone Circuit Court.
Id. at 4. In his motion, Fryar alleged that he never
received these credits due to clerical error on the part of
EKCC staff. Id. On April 9, 2014, the Boone Circuit
Court denied Fryar's motion. Id. The judge
wrote, “KRS 197.045(1)(b)(2) states that the
Commissioner of the Department of Corrections
may award Meritorious Good Time Credit.
Meritorious Good Time Credit is not a right, and is given
solely at the discretion of the Department of
Corrections.” Id. Fryar filed a notice of
appeal and on May 9, 2014 was granted leave to proceed in
forma pauperis. Id.
appeal, Fryar argued that while “prisoners do not have
a right to parole or goodtime credits, ” KDOC could not
arbitrarily interpret state law to deny such credits.
Id. The ...