SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
MERAL SMITH
PETITIONER, Civil No SX 17 CV 319
V CITE AS 2021 VI SUPER 108U
WYNNIE TESTMARK DIRECTOR OF THE
VIRGIN ISLANDS BLREAL OF CORRECTIONS,
RESPONDEhT
Appearances
Meral Smith Pro Se
For Pennoner
Denise N George, Esq
Virgin Islands Department of Justice
St Thomas U S Virgin Nands
F0: Respondent
MEMORANDUM OPINION
WILLOCKS Presiding Judge
([1 1 THIS MATTER is before the Count sua sponte fox review
BACKGROUND
(II 2 On July 25 2017 Petitioner Metal Smith (hereinafter Petitioner ) filed a petition fox writ
of habeas corpus (hereinaftex July 25 2017 Petition ) and Rick Mullgrav Director of Virgin
Islands Bureau of Correction was named as the respondent (hereinafter Respondent ) I On
January 16 2018 Petitioner filed a supplemental pleading [0 his July 25 2017 Petition
' On July 30 2019 the Court amend an order whereby the Court ordered the caption amended to reflect that Wynnie
Testamark is now the Director of the Virgin Islands Bureau of Corrections Thus Respondent as used herein will
refer to the then current Dircclor of (he Virain Islands Bureau of Corrections
Snurh 1 Testamatk
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‘11 3 On February 28 2018 the Court entered an order whereby the Court scheduled a review
hearing on June 29 2018
‘1[ 4 On March 20 2018 Petitionet filed a petition for a writ of habeas corpus ad testificandum
whereby Petitioner requested the Court to requireIe] [Respondent] to bring the Petitioner before
the Court f01 the leview hearing (March 20 2018 Petition )
‘I[ 5 On May 21 2018 Respondent filed a motion for the June 29 2018 review hearing to
proceed via Video conference which was subsequently granted by the Court by an order enteted
on May 25 2018
‘l{ 6 On June 21 2018 Petitioner filed a motion fox a new order in response to the Court 9 May
25 2018 order
‘11 7 On June 29 2018 the teview hearing was. continued due to technical difficulties
‘11 8 On July 12 2018 Petitioner filed a motion fox decisiom 0n motions/petition pending
(119 On March 1 2019 the Court entered and issued a writ of habeas corpus (hereinafter
March 1 2019 Writ ) whereby the Court granted Petitioner 5 July 25 2017 Petition as to Claim
One and Claim Five to wit the issues of lack of due process in his transfer and the unavailability
of educational programs denied Petitioner 5 July 25 2017 Petition as to Claim Two Claim
Three Claim Foul and Claim Six to wit the a1legations that the Petitioner may not be
incarcerated in a privately owned prison facility that the Respondent is required to establish
mitten criteria for transfer and selection of facilities and that Petitioner must be able to review of
BOC s agreement with Saguaro ordered Respondent to file a return and ordered that Petitioner
may file a traverse thereafter ° (March 1 2019 Writ )
’ In the M21th 1 2019 Writ the Court explained
Snark v Testammk
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Memorandum Opinion 2021 VI SUPER 108U
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A review of the Petition indicates that the Petitioner is ultimately requesting relief baseti on the
tollowing six elaims I) that he was transferred hum Golden Grove to a faciEity outsiée of the Territory in
Violation oi the Virgin Islands Rules & Regulations 2) that it is illegal to hate the Petitioner confined in a
privately 0w ned prison 1) that Saguaro does not comply with the Virgin [stands Code and the Respondent
hats no written eriteria for determining eompiianee 4) that the Respondent has violated the Virgin Islands
Code by tailing to establish written eritet‘ia for determining whether a transfer taeility meets statutory
requirements for educational programs and how those programs will enable inmates to gain marketabEe skim
5) that the ?etitioner has been preVented tram taking part in an) educational or voeational programs at
Saguaro and 6) that the Petitioner has not been allowed to retiew the contract between the Virgin Islands
Bureau of Corrections (hereinafter BOC ) and the owner at the Saguaro faeility For the following reasons
the Petition will be granted in part and denieti in part
Claim One Fatima to Follow Transfer Procedure
In the present ease the Petitioner aIEeges that he had no warning of a [muster and was toreibl)
removed from Golden Grove to Saguaro (See Pet ‘][‘]{ 1 l0 ) He alleges that he remixed no notiee and that
no heating took plaee in aeeordanee with the Vitgin [stands Rules & Regulations (See rd } These allegations
presumed to be true establish a prima taeie ease tor haheas relief
Clam! Two Illegal Confluenwm m a Future Pn‘son
In this eaSe the Virgin Istands Legistature had the authmization to amend or meet loeal laws whieh
it chose to do when it authorized the transfer of inmates to privately 0w ned {aeiIities Further the change in
the law does not make it an uneonstitutionat er post filth?) law beeause it is not penai and does not lurther
punish the Petitioner Further there are additional due pmeess pruteetions in plaee in the lorm 0f the t1 anster
heating outlined in suhehapter 4503 of the Virgin Islands RuEes and Regulations As sueh the Petitioner has
not p10\en primal taeie that his eoniinement in a privately owned prison is illegal
Clam: Three Fatima to Establish Clint“: to Determine Whether (1 Transit): Out of Tenlron 15
War I mm d
The minored language 01 Section 450? and the Vilgin IsEands Rules & Regulations indieates that a
determination must be made by the Direetor of 80C but not that the Direetor must establish any further
written guidelines lot doing so Rather the due prom» the Petitioner claims. is lacking stems from the
mandatory transfer hearing the pmeedute for whieh is set out in suhehapter 4503 at the Virgin islands Rules
and Reoulations and [he eommittee 5 written findings For that reason the Petitioner has not made a prima
taeie ease tor relief for taiiure to adopt turther eriteria tor transfer outside Ul the Tenitory
Chum Four Failme r0 Esrablzsh Cllfe’lia to Determine Whether Tlamte: Facahtim C‘omgzlt 111th
Vu gin Islands Lam
As alum. the establishment of Seleetion criteria is not the issue The potential denial of rights does
not stem tram the Eaek 0t eriteria but from the transter to a laeiEity that is not in compliance with Virgin
Islands law The remedy tor this Violation is not to establish new guidelines but to remove an inmate to an
appropriate Lorreetional taeility Therefore the Petitioner s allegations though taken as true are an
insulfieient prima facie elaim of relief
C[cum Fae Pamugation in Edmational Programs
It is not made clear by the Petitioner whether the problem is that Saguaro times not have any
edueational programs or that the Petitioner has been denied participation in existing programs In the interest
Smifhl Testamaik
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‘]1 10 On March 18 2019 Petitioner filed a motion f01 reconsideration and coxrection in response
to the Cou1t 3 March 1 2019 Writ In the March 18 2019 motion Petitioner advised the Court
that the aeqttence of events outlined in the Match 1 2019 Writ were inaccurate and clatified that
Petitioner was prosecuted in the District Court of the Vii gin Islands and that he was taken directly
out of the courtroom after being sentenced and transferred out of the Virgin Islands to Puerto Rico
and then to Federal Bureau of Prisons (BOP) facilities in America (March 18 2019 Motion p
I )
‘ll 1 1 On March 20 2019 Petitioner filed a motion for a show cause order whereby Petitioner
requested the Court to tequire Respondent file an answer (response) to Petitionei 5 [July 25 2017
Petition] within 30 days herefrom showing undet what legal authority and due ptocess procedures
he used to transfer Petitioner from Golden Grove Prison St Croix Virgin Islands to Saugaro
Correctional Facility in Elroy Arizona on March 8 2016 and to two other private prisons operated
by C01rections Cooperation [sic] of America (March 20 2019 Motion )
‘11 12 On April 2 2019 Petitioner filed a motion fox immediate release and relief
01 protecting the Petitioner s statutory right to educational programs while incarcerated the Court will
assume that the Petitioner Imam to say that Saguaro does not have the appropriate programs Taking that
statement as tins. the Petitioner has alleged a prima tacit: ease for habeas relief Any further question of
whether the Petitioner has been denied participation by the stall at Saguaro is an issue that may be addresud
in luture proceedings
Clam: Sit Renew 0t Comma Benteen Sagualo and 80C
The Respondent is theretore allowed to make an agreement for the Petitioner to be incarcerated
outside of the Territory and this statute does not giwe the Petitioner the right to review that agreement
especially as he has not alleged that Saguaro is not accredited As already determined above the issues of
transfer procedure and a» ailability of educational programs will be addressed in this litioation Therefore the
Petitioner has not made a prima tacie case for reliet on this claim
(March 1 2019 Writ) (tootnotes omitted )
3mm” Testamarlt
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‘I[ 13 On April 30 2019 Petitioner filed another motion for a show cause order whereby
Petitioner requested the Court to require Respondent file an answer (response) to Petitioner 9
[July 25 2017 Petition] within 30 days hetefrom showing under what legal authority and due
process procedures he used to transfer Petitioner from Golden Grove Prison St Croix Virgin
Islands to Saugaro Conrectional Facility in Elroy Arizona on March 8 2016 and to two other
private prisons operated by Corrections Cooperation [sic] of America (April 30 2019 Motion )
(II 14 On Aptil 30 2019 Petitioner filed a traverse
(ll 15 On June 11 2019 Respondent filed a return
‘11 16 On July 12 2019 the Court entered and issued a memorandum opinion and writ of habeae
corpus (heteinafter July 12 2019 Wtit ) whereby the Court noted that Petitioner s motion f01
teconsideration relates to the three denied claims that stem from Title 5 Section 4503(0) of the
Virgin Islands Code which authoxizes the Director of the Bureau of Corrections to make
plisoner ttansfers out of the territoxy when the territory facilities are inadequate to serve the best
interest of the inmate 01 the general interest or welfare of the Virgin Islands granted Petitioner 5
March 18 2019 motion for reconsideration as to Claim Three denied Petitioner 5 March 18 2019
motion for reconsidetation as to Claim Two and Claim Four ordered the Respondent to file a
return addressing Claim One Claim Three and Claim Five and ordered that Petitioner may file a
traverse ‘
‘ In the July l2 20l9 Writ the Court explained
Clan" THO Confinement m (1 Pill are PliSOII
In the Motion for Reconsideration the Petitioner brings up additional information that was not
included in the Petition including that he is subject to a contract agreement between (plesumably) the Virgin
Islands Bureau of Corrections (hereinafter BOC ) and the federal government that he remain confined in
the Vircrin Islands Ewen it these altegationb been made in the Petition the Court would not hate allowed the
claim to move forward beeause the Petitioner misstates his situation Though the Petitioner was tried in the
Snuff” Testamatk
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‘ll 17 On July 29 2019 Petitioner filed a first amended petition for writ of habeas corpus
(hereinafter “Amended Petition )
Distritt Court 01 the Virgin Islands the Lharges were based on local law and he was sentenced accordingly
and ultimately plated in the custody of 130C As such the Court is not concerned with any prior agreement
mack with the federal gmernment to house the Petitioner only with the BOC 3 current arrangement Further
a litigant is not allowed to submit new arguments or lads t0 the Court in a motion for reeonsideraticn when
they should have been brought up previously Since the Petitioner s allegation» regardino Claim Two do not
state a prima tack case for reiitt the Court will not ruerse its denial of the claim
Claim Three Cum ta {0; Initiating Tmnsfez Out at the Tenitorx
Upon review 01 this issue the Court sees that it overlooked the ailegation that Eh:w Respondent may
have aLtLd arbitrarily in suiccting the Petitioner for relocation our other inmates However the Petitioner s
assertion that then. art. no written guidtlines for choosina when to Hamlet a prisoner is not tiahle because
the guidelines. are clearly listed in the Rules & Reuulations The Court also finds that the guidtlines in the
Rules & Regulations also apply indireetly t0 the Director 5 inquiry regarding whether the laeiiities in thL
Virgin Islands may be inadequate Fm example Virgin [stands facilities art. inadequate when an inmate
requires medial} care that is Ulla» aikahh. to him in the Viroin Islands
The Court maintains its position that any Vioiation of (1m. proeess stems not from a lack oi written
0uidelines for the Respondent to lollow and it would likei} be the Respondent who would make those rules
an) how but {mm the denial at a transfer hearing at whiLh a person can hear the :easons for his transfer viva
obiettions
In sum the Court will allow Claim Three to proud 0n the allegation that the RLspOntiLnl acted
arbitrarily in thawing the Petitioner for transit] but will not hear anything lUIIhu‘ rciating to written
guidelines tor transfer on choosing tumbler lacilitits The Court wilt redefine Claim Three as an assertiun 0t
arbitrary transler out of the tenitory in noncompliance u. ith §uti0n 4501 9 ot the Rules & Reoulations
Chum Fem Cumin [bi Clumtmg TIaIlYtEI Fatalities
This issue was addressed in one 0! the Petitioner s ptuimts habeas wrpus cases
Appellant‘s ehaltenge is preditatetl 0n the contention that the {Director of the Bureau 0t Corrections
tailed to promuloate lulu and regulations mandated by the legislature estabiishing the procedure
by which the Bureau of Corrections ascertained the awaiiability of educational and/or vocational
programs at the institution to which a Virgin Islands inmate is translcrred However in this matter
the words of the statute an. clear A plain reading of this statute reveals that the Attorne) General
must ”determine that educational programs exist at the facility to which an inmate is transferred
2) ascertain that the purpose of such programs are tor inmates to gain marketabie skills and 3)
ensure that no inmate be transferred to an) institution lacking such programs There is no
requirement that the programs be comparable nor that the Attorney General promulgate rules that
ascertain that one institution 5 programs art. more or less ettective at making an inmate marketable
than another institutions programs While Appellant s desire to seek educational opportunities
tailored to his afipirations are well placui the statute cannot be interpreted to create procedures nor
objectiVe eliteria that are not within its texted
For the reasons stated abme the Court will not reconsider its disposition of Claim Four The
?etitioner has not math. a prima tacie case for relief on the basis that the Respondent must draft written
guidelines tor choosing a transfer facility and ensuring that it has adequate educational programs
(July 12 20l9 Writ) (footnotes omitted )
Smith 1 Testamaik
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‘11 18 On August 2 2019 Respondent filed a second ietum in response to the Court 5 July 12
2019 Writ
‘11 19 On August 19 2019 Petitioner filed a motion for extension to file supplemental tiaverse
in response to Respondent 5 second retuin
‘11 20 On January 1 1 2021 Petitioner filed a motion for immediate decision and order whereby
Petitioner requested the Court to issue an order granting the [elief requested therein
JURISDICTION
‘11 21 The Superior Court of the Virgin Islands is authorized to heat petitions for writ of habeas
corpus" pursuant to Title 5 V I C § 1303 and Rule 1(c) of the Virgin Islands Habeas Corpus Rules
STANDARD OF REVIEW
‘11 22 Title 5 V IC § 1301 prOVides that [e]very person unlav» fully imprisoned 0r restrained of
his liberty under any pretense whatever may prosecute a writ of habeas comm to inquire into the
cause of such implisonment or restraint Title 5 V I C § 1304 provides that {t1he court authorized
to grant the writ to whom a petition therefor is presented shall grant the game without delay if it
appears that the Wilt ought to issue Rule 2 of the Virgin Islands Habeas Corpus Rules provides
The court must issue a writ of habeas corpus if the petitioner has alleged prima facie
grounds showing entitlement to relief and the claims are not legally barred In assessing
whether the petitioner would be entitled to relief if the factual allegations were proved the
court must take petitioner s factual allegations as true The court does not determine at this
stage whether the petitioner is entitled to discharge or any other form of remedy if habeas
relief is ultimately granted The issuance of a writ of habeas corpus under this Rule is an
inteimediate step pursuant to {Title} 5 V IC § 1304 which does not award any of the relief
sought in the petition but requires the respondent to file a return responding to the petition
V I H C R 2(d)(1)
In Blyden t Gm Ioffhe Vzrgm Islands the Virgin Islands Supreme noted that it is sufficient that
a petitioner simply make allegations that if later proven true would entitle him to habeas relief
Smir/zi Testamalk
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Memorandum Opinion 2021 VI SUPER 108U
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and that [o]nce that modest burden is met the petitioner has a right to the writ of habeas corpus
requiring the Government to file a return responding to the allegations in the habeas corpus
petition and produce the petitioner for an evidentiary hearing on the claims in his petition 64
V I 367 380 (V I 2016)
DISCUSSION
‘11 23 The Court will address the outstanding motions and Petitioner 5 Amended Petition in turn
A Outstanding Motions
‘ll 24 Upon ieView of the record the Court will order the following (i) Petitioner 5 March 20
2018 petition for a Wiit of habeas corpus 21d testificandum will be denied as moot since the June
29 2018 review hearing date already passed (ii) Petitioner 5 June 21 2018 motion for a new order
in response to the Cou1t s May 25 2018 order“1 will be denied as moot since the June 29 2018
review hearing date already passed (iii) Petitioner s July 12 2018 motion fox decisions on
motionS/petition pending will be denied as moot since the Court already ruled on Petitioner 5 July
25 2017 Petition and the substantive motions filed up to that date (iV) Petitioner s March 20 2019
and April 30 2019 motions for a show cause order will be denied as moot since the Court already
ordered Respondent to file a return in iesponse to Petitioner s July 25 2017 Petition S (v)
Petitioner s April 2 2019 motion for immediate release and relief will be denied since Petitioner
subsequently filed an Amended Petition and [tlhe court does not determine at this stage whether
4 The Court 5 May 25 2018 order granted Respondent 5 May 2| 20l8 motion for the June 29 2018 review hearing
to proceed via Video conference
‘ UndLr Rule 2 01 the Virgin Islands Habeas Corpus Rules [llhe return must explain under what lawful order the
petitioner is detained and must allege facts establishing the legality oi the. petitioner a custody and must comply
with [Title] 5 V I C § 1308 V I H C R 2(e) Title 5 V I C § 1308 provides that [t]he person upon whom the writ
is serud shall state in his return plainly and unequivoeally ( 1) whether he has or has not the party in his custody or
under his power or restraint and (2) it he has the party in his custody or powu or under his restraint the authority
and cause of such imprisonment 0r restraint Title 5 V I C § [10801)
Smith 1 Tesrummlt
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the petitioner is entitled to discharge or any other form of remedy if habeas corpus relief is
ultimately granted and that [t]he issuance of a writ of habeas corpus under this Rule is an
intermediate step puxsuant to [Title] 5 V I C § 1304 which does not award any of the relief sought
in the petition but requires the respondent to file a return responding to the petition VI HCR
2(d)(l)' (vi) Petitioner 9 August 19 2019 motion for extension to file supplemental traverse in
response to Respondent 5 second ieturn will be denied as moot since Petitioner filed an Amended
Petition and (vii) Petitionei s Januaiy l l 2021 motion for immediate decision and order will be
denied since Petitioner s Amended Petition is still pending before the Court and {t]he court does
not determine at this stage whether the petitioner is entitled to discharge or any other form of
remedy if habeas corpus relief is ultimately granted and that [t]he issuance of a writ of habeas
corpus under this Rule is an intetmediate step pursuant to {Title} 5 V I C § 1304 which does not
award any of the relief sought in the petition but requires the tespondent to file a return responding
to the petition V I H C R 2(d)(l)
B Petitioner’s Amended Petition6
(II 25 Upon teview of the Amended Petition the Court finds that Petitioner is ultimately
requesting habeas relief based on the following four claims (i) Petitioner was transferred from a
U 3 Virgin Islands prison to stateside prison facilities in Violation of his rights under Vitgin
Islands laws (Claim One) (ii) Petitioner has been denied access to educational andlor vocational
programs during his term of imprisonment in any U S mainland prisons in violation of his rights
Virgin Islands laws (Claim Two)“ (iii) Petitioner s confinement in a mainland prison affected the
6 Neither the Vilgin Islands Code nor in the Virgin Islands Habeas Corpus Rules addresses filing an amended petition
tor writ of habeas corpus At this juncture the Court sees no reasons to not accept Petitioner 5 Amended Petition Cj
V I H C R 2(k) ( A petitioner should raise all then a» ailablt. legal grounds in support oi the writ of habeas corpus in
the initial application provided howeVer that successive habeas corpus petitions may be filed )
517111111 Testamatk
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length of his sentence by depriving him of the ability to seek early parole release in Violation of
his right to seek early parole telease under Virgin Islands laws and his right to due process (Claim
Three) and (iv) Petitioner s rights to be free from ietaliatory actions fox exercising his
constitutional rights to seek redress is being Violated by his transfer to U S mainland prisons in
violation of his due piecess rights
Clam: One Petmoner s Tianster to Stateside Prison Faulmes nus m Violation of
HIS Rights Under VII gm Islands Law a
(H 26 In his Amended Petition Petitionei alleged inter aIia that (i) On March 8 2016 in the
early morning Petitioner was told that he was being transferred from St Croix to a prison within
the United States of America (Amended Pet ‘11 1) (ii) Petitioner was then transfeired t0 Saguaro
Correctional Center in Eloy Arizona a private prison opeiated by Corrections Corporation of
Ameiica (CCA) now known as CoreCivic (CC) on March 8 2016 at around 12 30 a m {sic}
where he was incarcerated until October of 2017 when Petitioner w[as] tiansferied to Central
Arizona Detention Center in Florence Arizona (Amended Pet ‘1[ 10) (iii) In February 6 2018
Petitionet was moved from Central Arizona Detention Center in Florence Arizona to Tallahatchie
County Correctional Facility in Tutwiier Mississippi where Petitioner remained housed up until
May 13 of 2019 (Amended Pet ‘11 11) (iv) In May of 2019 Petitioner was tiansferred from
Tallahatchie County Correctional Facility in Mississippi to CCA/Citrus County Detention Facility
in Lecanto F101ida (operated by Core Civic Corporations) where Petitioner is presently confined
(Amended Pet 11 12) (v) Prior [0 Petitioner 5 transfer to U S mainland Prisons from Golden
Grove Adult Correctional Faculty in St Croix U S V I Petitioner was not provided with a hearing
or notice of the proposed transfer and was not provided with an opportunity to contest the transfer
in accordance with the procedural requirements under the Virgin Islands RuIes and Regulations
5mm“ Testammk
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(VIRR) that should be provided to a U S Virgin Islands inmate before he may be nansferred to a
U S Mainland Institution (Amended Pet ‘ll 14) (vi) Respondent did not perf01m the analysis
under the VIRR s to asceltain whether 01 not petitionex s nansfer would have been in Petitioner s
best interest or the best interest or welfare of the U S Virgin Islands or if any of the other criteria 5
for transfer undet the VIRR s or the V I Transfer statute existed (Amended Pet ‘11 15) (vii)
Petitioner 5 transfer to a mainland prison was not in Petitioner s best interest nor the best interest
or the welfare of the U S Vitgin Islands nor did any of the other criteria 3 under the VIRR s for
transfer of a Virgin Islands inmate to a U S mainland prison exist (Amended Pet (II 16) and(viii)
Petitionet suffered irreparable balm by virtue of loss of his liberty interest statut01y tights and
legal rights by being essentially exiled from the {V}irgin Islands without being provided any
procedural due process pxocedures (Amended Pet ‘f[ 18 )
‘11 27 The Vilgin Islands Code provides
Commitment to institutions within the jurisdiction of the Bureau [of Corrections] shall be
to the Bureau [of Cortections] not to a particular institution The Director of Corrections
shall assign a new 1y committed inmate to an approptiate institution He may transfer an
inmate ftom one institution to another consistent with the commitment and in accordance
with treatment training and security needs
Title 5 V I C § 4505
The Virgin Islands Codes also ptoVides that [t]he Director of Corrections is authorized to enter
into agreements to nee the correctional or detention facilities of the United States Bureau of
Prisons' or the correctional facilities of any state or local government or private correctional entity
located in the United States its territories possessions commonwealths or the District of
Columbia which are accredited by the American Correctional Association when the Director of
Corrections determines that detention and/or correctional facilities within the Virgin Islands are
inadequate to serve the best interest of the inmate or the general interest or welfare of the Territory
Snark l Testammk
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proviéed that as a condition of and prior to the transfer of any inmates the Director of Corrections
shall ascertain and insure the availability of educational and/or vocational ptograms at the
institution they are to be transferred to for the pu1pose of enabling such inmates to gain marketable
skills and p10» ided feather that no inmate is to be transferred to any institution lacking any such
program(s} ’ Title 5 V I C § 4503(c) The Code of U S Virgin [stands Rules sets forth specific
procedures for the ttansfer of any prisoner from pzison facilities in the Virgin Istands t0 stateside
prison facilities including but not limited to requiring “[a] committee of three persons shalt be
formed to hold an administrative hearing prior to the transfer of any prisoner from prison facilities
in the Virgin Islands to stateside prison facilities 7 Title 5 C V 1 R § 4503 I The Code of U S
Virgin Islands Rates also sets, forth specific criteria for the selection of inmates to be ttansferted
to wit “Selection of inmates to be transferred may be made by the foilowing critetia and f01 any
other good cause as detetmined by the Director to wit (l) Prisoners who voluntarily request
7 Other requirements under the Code of U S Virgin islands Rules inelude (i) The eommittee shall he eomprised oi
the warden or designee aeting as ehairman one shift supenisor from the prison eorreetion eta” who is tamiliar with
the prisoner and anothel person who is a member oi the staff 01 the administrator oi the prison Title 5 C V I R §
4503 2 (ii) The prisonel shall be giwen a written notiee oi the hearing at least "’4 hours prior to the hearing whieh
notice shalt not only state the time and plaee ot the hearing but the leases“. the transfer is being eontemptated An
inmate 5 request tor a postponement 0E his hearing shall be granted unless good eause exists tor retusing the request
However no postponement shall extend more than three (3) days from the date [or which the hearing was originain
Set Title 5 C V i R § 450? 3 (iii) A written statement of the taets or eireumstanees relied upon by the Bureau and
upon whieh it propane to determine that the inmate should be transferred shall be presented to the inmate
simultaneousty with the notiee of hearing Title 5 C V l R § 4503 4 UV) The inmate shall be alltJWed to eat}
witnesses on his behalf and to present any (ioeumentary evitienee available to him in an eltont to establish that the
transter is unwarranted unless the Direetor of the Bureau in writino eoneludes tor any reason that eomplianee with
the aboye would he disruptive to the hearing would eause an undue burden on the institution 5 administration woutd
be unduky hazardous to the satiety of the institution or that compliance would compromise institutional safety or
eorreetional goats Title 5 C V I R § 4503 5 (V) In instaneee in which the inmate is physically or mentally unabie
to eolleet and present the evidenee necessary for adequate presentation of his case including those instances in whieh
the inability results from lack of intelleetual capacity the inmate shaft be allowed to seek the assistance ot a fellow
inmate who shah serye as his representative or if this is deemed not teasible he shall he afforded adequate substitute
aid which may take the form of either assistance from a stait member or Item 3 suffieiently competent inmate
desionateel by the staff Title 5 C V E R § 4503 6 and (vi) A record shall be made of the findings of the committee
and the evidence reheat on to make the findings as well as a statement at the recommendations The reeord of the
proceedings shall he forw arded to the Director ot the Bureau 01 Corrections The Director shall inform the prisoner
in writing of the findings from the hearing and the reasons tor the Directors decision Title 5 C V I R § 450% 7
511ml“ Testamalk
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transfer (2) Inmates in need of medical or psychiatric care (3) Recommendation by the Courts to
transfer the prisoner (4) Inmate with long term sentencing However this criterion will be valid
only so long as the Virgin Islands lacks facilities for extended segregation of 10mg term prisoners
For this purpose long tetm means a sentence of imprisonment of not less than 10 years (5) A
finding by the ptison administiation that the inmate is a high risk for escaping (6) A pattetn of
distuptive action or behaVior on the part of the inmate (7) A finding by the Director that
cortectional facilities within the Virgin Islands are inadequate to setve the best inteiest 0f the
inmate or the general welfare of the Territory Title 5 C V I R § 4503 9
‘fl 28 Here taking Petitioner s factual allegations as true Petitioner was not given a Mitten
notice of an administrative hearing an administrative hearing was not held prim t0 Petitionel s
ttansfer to stateside plison facilities and none of the applicable procedures required under the
Virgin Islands Codes and the Code of U S Virgin Islands Rules were follow ed As such the Court
finds that Petitioner presented a prima tacie case that is not procedurally haired regarding his claim
that his transfer to stateside prison facilities was in violation of his rights under Virgin Islands
laws
Claim Two Petztzolzer s Confinement m Statetzde Pusan Fuulmes WIthout Access
to Educational and/or V0((1110n(ll Programs has been a Violation of HIS Rights
Under Virgin Islands Lam
$129 In his Amended Petition Petitioner also alleged inter alia that [t]he Correctional
Facilities in the U S mainland to which Petitioner was transferred did not have any vocational
and/or educational programs available to Petitioner (U S Virgin Islands inmates) prior to and after
Petitioner 5 transfer to said institutions therefore depriving Petitioner of the access to these
Smu‘ht Testamark
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progtams which he requested during the time he was and is housed in these mainland institutions
(Amended Pet (ll 17 )
‘11 30 As noted above the Virgin Islands Code requires that as a condition of and prim to the
transfer of any inmates the Director of Corrections shall ascertain and insure the availability of
educational and/or vocational programs at the institution they are to be transferred to for the
purpose of enabling such inmates to gain marketable skills and provided futther that no inmate is
to be transferred to any institution lacking any such program(s) Title 5 V I C § 4503(c)
(1131 Here taking Petitionet s factual allegations as true the stateside prison facilities that
Petitioner was transferted to did not have any educational and/or vocational programs available to
Petitioner As such the Court finds that Petitioner presented a prima facie case that is not
procedurally barred regarding his claim that his confinement in stateside plison facilities without
access to educational and/01 vocational plograms has been a violation of his rights under Virgin
Islands laws
Clam: Three Pennonet A Confinement m Stateszde Pusan Facilities has Degnved
Petttzmzei s A1911”) [0 Seek Early Parole Release m Violation of H19 Right to Seek
Eat!) Parole Release Under Virgin Islands Lam and H15 Right to Due Frown
(ll 32 In his Amended Petition Petitioner also alleged inter alia that (i) Petitioner s transfer to
a U S Mainland Prison affects the terms and length of his imprisonment for Petitioner is required
to be examined by a psychiatrist/psychologist in order acquire a recommendation from said
psychiatrist/psychologist as one of the requirements of early parole however if Petitioner is
imprisoned in the U S Mainland the Parole Board and the Director has determined that petitioner
will not meet the psychiatrist/psychologist 3 requirements unless such experts are licensed by the
U S Virgin Islands Medical Board not any Medical Board of the [J S Mainland (Amended Pet
szrht Testamark
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‘3{ 21) (iii) Petitioner cannot remove himself ftom a U S Mainland Ptison in order to be examined
by a Psychiatrist/Psychologist licensed in the U S Virgin Islands therefore Petitione1 5 present
confinement in a mainland prison which deprives Petitioner 0f the opportunity f01 a
psychological/psychiatrical [sic] examination in comport with the early parole statute totally
deprives Petitioner of his right to seek early patole release under the laws of the U S Virgin
Islands (Amended Pet fl 22)‘ and (iv) Petitioner is entitled to seek telease on Early Parole
under the laws of the U S Virgin Islands but is hindered from doing so as a result of him being
housed in a U S Mainland Prison in Violation of the protections of the due process clause of the
U S Constitution 5 14‘“ amendment of it s [sic] own force (Amended Pet ‘f[ 23 )
(ll 33 The Virgin Islands Code prOVides
Except for a prisonel sentenced to a term of life imprisonment without parole etery
prisoner confined in any penitentiary jail or ptison for a violation of the V11 gin Islands law
for a definite tetm or terms 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 Directox of the Bureau Of Corrections supported by the
recommendation of a psychiattist and/or psychologist may be released on palole after
serving one half of such tetm or tetms or after serving 15 years of a life sentence or of a
sentence of 30 years or more or after serving the minimum sentence required by law
whichever is greater Ptovided however That the Boatd 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 C01 rections supported by the [ecommendation of a psychiatrist
and/or psychologist is auth01ized 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 sewing 10 years of
a life sentence or of a sentence of 30 years or more
Title 5 V [C §460l
The Virgin Islands Code further provides that [a]pp!icati0n for parole shall be made in writing
Title 5 V I C § 4603 see Title 5 C V I R § 4503(d) 1(a) The Code of U S Virgin Isiands Rules
Smith I Testammk
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Memorandum Opinion 2021 VI SUPER IOSU
Page 16 of 39
sets forth specific tequirements for presentation of applications to the Parole Board 3 The Code of
U S Virgin Islands Rules also provides that ‘ [w]hen the applicant is confined in the Virgin Islands,
he shah have the light ptovided he qualifies to appear before the Board and be given an
2‘ Requirements for presentation of applieations to the ?aroEe Board under the Code of U Q Vilain Islands Rules
include
(a) An applieations tor parole shah be in writino
(b) No appEieation for parole shall he eoneidered uniess the prison records reveaE that the applieant’s eonduet
has been uniformly exeelle m tor at least six (6) months preeedino the date of the submission 0t his applieation
for parole
(e) With respeet to a prisoner who was eomieted tor the Violation 01 a Virgin Maude law plior to July 7
£981 the provisions set forth in subparagraphe (d) (e) and (f) heme» shall appiy
(d) Unless prohibited by law and unless he fails to reeeiVe the reeolnmendations speeilied in subparagraph
(f) below eyery sueh prisoner eontined for mer 180 days for violation ot a Virgin Islands law» may be
enneideled by the Parole Board for release on parole after serving one third 01 his term or terms or aftel 10
years of a lite sentence or a sentenee 0! over 30 years
(e) Unless plohibited by law and unless he tails t0 reeeixe the reeommendations speeified in subparaglaph
(1} beiow any sueh prisoner may he eonsidered by the Parole Board tor reiease on parole eariier than ahme
set forth whenever unusual or extenuating eireumetaneee appear to justify sueh aetion In sueh eaSes a
deseliptiun oi the unusual or extenuating cireumstanees shail be submitted in writing to the Parole Board on
a term prmided by the Warden
(f) In order to quality fol parole the applieant must be reeommended for parole by ( I ) the Warden and (2)
a psyehiatrist or :1 p5) ehoiogist
(g) With [espeet to a prisoner who was eomieted tor the violation of a Virgin Islands law on or altet July 7
1981 the proxisions set forth in subparagraphs (h) (i) and (i) below shalt apply
(h) Unless prohibited by iaw and unEess he mite to reeeixe the reeommendations speeified in subparagraph
(1') beiow eyery sueh prisoner eontined 101 over 180 days for Violation of a Vilcrin Iehmds law may be
eonsidered by the Parole Board for lelease on parole after sewing one haif of his term or terms or after 15
years of a life sentenee or a sentenee over 30 years or after serving the minimum sentenee required by law
WhieheVer is greater
(1) Unless prohibited by law and uniebs he fails to remain: the reeommendations speeified in subparagraph
(i) below any sueh prisoner may be eonsidered by the Paroie Board for releaSe on parole earlier than set forth
in subparagraph (h) abme after Sening one third 01 his term or terms or after serving 10 years of a life
sentence or of a sentenee 0t 30 years or more wheneyer unusual or extenuating eireumstanees appear to
justify such aetion Zn sueh caSes a deseription of the unusual or extenuating Circumstanees shall be submitted
in writing to the Parole Board on a torm prtnided by the Director of the Bureau 0t Corrections
(3) in order to quaiity for patch: the appkieant must be reeommended for paroie by (l) the Direetor 0f the
Bureau of Corrections and (2) a psyehiatrist or a psyehologist
(k) Affirmative aetion by the Board requires the Vote of a majority of the Voting members present at a meeting
provided that there must be at least three (3) sueh members voting The only exception to this rule is that of
a reeommendation for early parole (see eubparagraphs (e) and (i) above) which require a two thirés vote of
all the voting members of the Board
Title 5 C V I R §4503(d) 1(a) (k) see Titie 5 C V I R § 4601 1(a) (e)
SIIIlf/11 Tesmmmk
9X 17 CV 319
Memorandum Opinion 2021 VI SUPER 108U
Page 1701 19
opportunity to orally exptess his viewpoints on his application for parole and that [w]hen
applicant is confined elsewhere he will be given an opportunity to submit his views in writing
Title 5 C V I R § 4601 10(d)
‘11 34 When government action depiives a person of liberty or property the Due Process Clause
is triggei Thus Courts must examine the natu1e of an individual s claimed interest when the
person alleges a denial of due process If a person possesses a legitimate claim or entitlement to a
liberty or property interest that interest becomes protectable under the Due Process Clause
Josiah 1 Farrell) 28 V I 101 l 10 (V I Terr Ct June 15 1993) Here Petitioner indeed has a
right to apply for parole early or otherwise under the Virgin Islands Code and the Code of U S
Viigin Islands Rules However there are no requitements undet the Virgin Islands Code or the
Code of U S Virgin 181ands Rules that the prisonet has to be physically located in a prison facility
in the V11 gin Is1ands to submit an application for parole and be considered for palole or that the
p1is0net has to be physical located in a ptison faci1ity in the Virgin Islands to be examined by a
psychiatrist or a psychologist or that the examining psychiatrist or psychologist has to be licensed
to piactice in the U S Virgin Islands In other words the location of Petitionel s confinement does
not take away his right to apply f01 parole early or otherwise because it does not affect his ability
to seek early parole release As such the Court finds that Petitioner s factual allegations even if
true has not set forth a prima facie case regarding his c1aim that his confinement in stateside prison
facilities has deprived his ability to seek early parole release in violation of his right to seek early
parole release under Virgin Islands laws and his right to due process
Clazm Four Petmoner 5 Transfer to Stclteszde Prison Faczlttzes was Due to
Resgondent s Retaltatory Actions to Hinder Petitioner s AblllQ to Seek Earl}
Parole Release m VlOltlthll 0t HIS Rzght to Seek Earl) Parole Release Under Virgin
Islands Laws and H15 Rzght t0 Due Process
SImt/It Tesrcmlmk
9X 17 CV 119
Memorandum Opinion 2021 VI SUPER 108U
Pane 18 0f l9
‘11 35 In his Amended Petition Petitioner also alleged inter alia that (i) Petitioner 5 selection
for transfer to the U S Mainland prisons was arbitrarily and capricioust instituted as Petitioner
was selected for transfer only out of personal animosity by the Director and his staff because of
petitionei s constant vigilance of seeking early parole telease from the U S Virgin Islands Parole
Board ( Amended Pet ‘11 19) and (ii) Petitioner 5 transfer to the U S Mainland Prisons was
utilized as a means to hinder Petitioner s ability to pmsue Early Parole Release f[r0]rn the U S
Virgin Islands Parole Board (Amended Pet ‘11 20 )
‘11 36 Here Petitioner essentially alleged that his transfer to stateside prison facilities was due to
Respondent s retaliatory actions to hinder Petitioner s ability to seek early parole release 9 and
therefore the transfer was in violation of his right to seek early parole release under Virgin Islands
laws and his tight to due process Howexei as noted above the location of Petitionet s
confinement does not take away his right to apply for parole early or otherwise because it does
not affect his ability to seek early parole telease Thus the fact that Petitioner was transferred to
stateside prison facilities in and of itself does not constitute retaliatory actions by Respondent to
hinder Petitioner s ability to seek early parole release As such the Court finds that Petitioner s
factual allegations even if hue has not set forth a prima facie case regarding his claim that his
transfer to stateside prison facilities was due to Respondent s retaliatory actions to hinder
9 The Court already addressed Petitioner s allegation that his transfer to stateside prison facilities was arbitrary in
Claim One to wit the Court stated that taking Petitioner s factual allegations as true Petitioner was not given a
written notice of an administrative hearing an administratiye hearing was not held prior to Petitioner 3 transfer to
stateside prison facilities and none of the applicable procedures required under the Virgin Islands Codes and the Code
of U 8 Virgin Islands Rules were followed Thus the Court will only address Petitioner s allegation that his transfer
to stateside prison facilities was due [0 Respondent s retaliatory actions to hinder Petitioner s ability to seek early
parole release in Claim Four
Smith \ Tetramalk
9X 17 CV '49
Memorandum Opinion 2021 VI SUPER 108U
Page 19 0t [9
Petitionet s ability to seek early parole release in violation of his right to seek early parole telease
under Virgin Islands laws and his tight to due process
CONCLUSION
‘11 37 Based on the foregoing the Court will deny the outstanding motions and grant in pant and
deny in part Petitioner 5 Amended Petition A writ consistent with this Memorandum Opinion will
be entered contemporaneotl§ly herewith
DONE this . £2; 5?“day of October 2021
ATTEST $4.42 fig dégg
Tamara Charles HAROLD W L WILLO S
Clelk of the Court Presiding Judge of the Superior Court
/ %
By / A
W Court 1k Supervisor
Dated ”31‘2"? [203/