Opinion
No. 01-CV-73138-DT.
June 6, 2002.
OPINION AND ORDER DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT AND HABEAS CORPUS PETITION, AND DENYING A CERTIFICATE OF APPEALABILITY
Dwayne Barclay, ("Petitioner"), a state prisoner presently confined at the Mid-Michigan Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges the Michigan Parole Board's decision to deny him parole. Petitioner has also filed a motion for summary judgment. For the reasons stated below, Petitioner's motion for summary judgment and his habeas corpus petition shall be denied. In addition, the Court denies any certificate of appealability that may be requested in this matter.
Background
Petitioner was convicted of car jacking in the Wayne County Circuit Court in 1997 and received a sentence of three to ten years in prison.
Petitioner was denied parole by the Michigan Parole Board on March 30, 2001. ( See 3/30/01 Parole Board Notice of Decision). The Parole Board stated that it lacked reasonable assurance that Petitioner would not become a menace to society or to the public safety if he was released on parole. ( Id. at 1). The Parole Board also indicated that Petitioner's assaultive risk level was very high or high, which the Parole Board found to be indicative of a high probability that Petitioner would commit a new violent offense while on parole. The Parole Board noted that the assaultive crime that Petitioner was convicted of arose in a multiple offender situation and involved the victimization of a stranger. The Parole Board further noted that Petitioner had a prior criminal history of violent misdemeanors and drug or alcohol related crimes. Regarding Petitioner's correctional adjustment, the Parole Board indicated that Petitioner had received misconducts since coming to the Michigan Department of Corrections or since his last parole board action. The Parole Board also mentioned that Petitioner's prior post-conviction corrections history included continued substance abuse while under parole or probation supervision and a history of probation failure. ( Id.).
With respect to program involvement, the Parole Board found that Petitioner had violated "Zero Tolerance" rules for escape or absconding and had shown an inability to control his substance abuse. ( Id. at 2). The Parole Board also noted that Petitioner had failed to complete past community placement. The Parole Board recommended that Petitioner demonstrate responsible behavior by earning positive reports in any programs that he may be involved in. However, in bold letters the notice indicated that completion of such actions does not guarantee a positive action by the Parole Board in the future. ( Id.).
Discussion I. Petitioner's Motion For Summary Judgment
On November 19, 2001, Petitioner filed a motion for summary judgment. The basis for Petitioner's motion is that Respondent failed to file an answer to the petition for writ of habeas corpus by the original response date of November 19, 2001, or file a motion for enlargement of time by that date. However, on December 17, 2001, Respondent did file a motion for enlargement of time. On January 7, 2002, the Court granted the motion for enlargement of time, giving Respondent until March 19, 2002, to file an answer with the Court. Respondent's answer was filed on March 19, 2002.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir. 2000) (quoting FED.R.CIV.P. 56(c)). Although the summary judgment rule applies to habeas proceedings ( see Harris v. Stegall, 157 F. Supp.2d 743, 746 (E.D. Mich. 2001)), a federal district court should not enter a summary judgment in a habeas case if the pleadings or papers present a genuine issue of fact. United States ex. rel. Johnson v. De Robertis, 718 F.2d 209, 211 (7th Cir. 1983).
In this case, Petitioner's sole basis for requesting summary judgment was the fact that Respondent failed to file an answer to Petitioner's application for a writ of habeas corpus by the original response date of November 19, 2001. To the extent that Petitioner is asking the Court to enter a default judgment based upon Respondent's failure to file an answer by the original response date, this Court is without power to grant Petitioner a default judgment in this case, because a default judgment is unavailable in a habeas corpus proceeding on the ground that state officials failed to file a timely response to the petition. Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970); Whitfield v. Martin, 157 F. Supp.2d 758, 761 (E.D. Mich. 2001). The failure of the State of Michigan to file a timely response does not relieve a habeas petitioner of his or her burden of proving that his or her custody is in violation of United States law. Allen v. Perini, 424 F.2d at 138. Moreover, the Court has the discretion to extend the time to file a response to a habeas corpus petition and chose to do so in this case. Clutchette v. Rushen, 770 F.2d 1469, 1474-1475 (9th Cir. 1985). Accordingly, Petitioner's motion for summary judgment shall be denied.
II. Petitioner's Habeas Corpus Petition
In his habeas corpus petition, Petitioner challenges the Parole Board's decision to deny him parole. Petitioner first claims that the Michigan Parole Board's decision to deny him parole was not supported by competent, material, and substantive evidence. Petitioner also claims that he was improperly denied parole where the Parole Board incorrectly calculated several of the parole guidelines variables, that the Parole Board improperly departed from his parole guidelines range without offering substantial and compelling reasons for doing so, that he was improperly denied parole based solely upon his prior criminal record, and that the Parole Board member who conducted his parole interview failed to consider pertinent information relative to the notice of intent.
Although Petitioner filed his habeas corpus petition under 28 U.S.C. § 2254, the Court construes it as being filed under § 2241. See In Re Slatton, 165 F.3d 28, 1998 WL 661148 (6th Cir. 1998) (habeas petition challenging procedures of Parol Authority can only be brought under § 2241 for habeas relief); Johnson v. Tyszkiewicz, 2001 WL 278172, *4 (E.D. Mich. February 28, 2001) (construing § 2254 petition challenging Parole Board's decisions as being filed under § 2241).
Petitioner, however, does not identify this "pertinent information."
There is no constitutional right of a convicted person to be conditionally released before the expiration of a valid sentence. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7; 99 S.Ct. 2100, 2104; 60 L.Ed.2d 668 (1979); see also Board of Pardons v. Allen, 482 U.S. 369, 377, n. 8; 107 S.Ct. 2415, 2420; 96 L.Ed.2d 303 (1987) (a state has no duty to establish a parole system or to provide parole for all categories of convicted persons and the state may place conditions on parole release). Stated more succinctly, there is no federal constitutional right to be paroled. Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990); Lee v. Withrow, 76 F. Supp.2d 789, 792 (E.D. Mich. 1999). The denial of parole and the continued incarceration of a prisoner does not therefore constitute a violation of the cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution, Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992); Lee, 76 F. Supp.2d at 792; see also Nedea v. Voinovich, 994 F. Supp. 910, 918 (N.D. Ohio 1998). Thus, requiring a prisoner to serve even his maximum sentence works no constitutional violation upon an inmate. Nedea, 994 F. Supp. at 919, n. 20 (citing to Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, l15 L.Ed.2d 836 (1991)).
In Michigan, a prisoner's release on parole is discretionary with the parole board. Lee v. Withrow, 76 F. Supp.2d at 792 (citing to In Re Parole of Johnson, 235 Mich. App. 21; 596 N.W.2d 202, 204 (1999)). The Michigan parole statute therefore does not create a right to be paroled. Id.; see also Hurst v. Department of Corrections Parole Bd., 119 Mich. App. 25, 29, 325 N.W.2d 615 (1982). Because the Michigan Parole Board has the discretion whether to grant parole, a defendant does not have a protected liberty interest in being paroled prior to the expiration of his or her sentence. Canales v. Gabry, 844 F. Supp. 1167, 1171 (E.D. Mich. 1994); Hurst, 119 Mich. App. at 28. The Sixth Circuit has held that MICH. COMP. LAWS § 791.233, Michigan's parole statute, does not create a protected liberty interest in parole, because the statute does not place any substantive limitations on the discretion of the parole board through the use of particularized standards that mandate a particular result. Janiskee v. Michigan Dep't of Corrections, 932 F.2d 968, 1991 WL 76181, *1 (6th Cir. May 9, 1991) (citations omitted); see also Harrington v. Redman, 1991 WL 193466, 945 F.2d 404 (6th Cir. September 30, 1991).
Because Petitioner has no federal constitutional right to be paroled, the Michigan Parole Board's decision to deny him parole does not violate a federal constitutional right. Moreover, even if Michigan's parole statute may have created a "protectible expectation of parole," Canales, 844 F. Supp. at 1171, no more procedural due process is constitutionally required than giving Petitioner the opportunity to be heard, and when parole is denied, informing the inmate in what respect he or she falls short of qualifying for parole. Id.; Lee, 76 F. Supp.2d 793.
In the present case, Petitioner was given an opportunity to be heard prior to the parole decision and was given reasons by the Michigan Parole Board why he has fallen short of qualifying for parole, and what corrective steps he will need to take in order to put himself in a better position for parole consideration. Accordingly, this Court concludes that the Michigan Parole Board's decision to deny Petitioner parole did not violate his due process rights. Lee v. Withrow, 76 F. Supp.2d at 793.
The individual claims raised by Petitioner in regards to the procedures used to deny him parole also fail to state a claim upon which habeas relief can be granted. Because Petitioner has no state created liberty interest in being paroled, he may not challenge the procedures used to deny him parole. See Johnson v. Tyszkiewicz, 2001 WL 278172, *4 (E.D. Mich. February 28, 2001); Thomas v. Morgan, 109 F. Supp.2d 763, 768 (N.D. Ohio 2000).
In sum, Petitioner has failed to show that the Michigan Parole Board's decision to deny him parole violated a right protected to him by the federal constitution. Accordingly, Petitioner has failed to demonstrate his entitlement to the issuance of a writ of habeas corpus.
III. Certificate of Appealability
28 U.S.C. § 2253 governs appeals in habeas corpus proceedings. Whether Petitioner's habeas corpus petition was brought under § 2254 or brought under § 2241, he must obtain a certificate of appealability before appealing this Court's denial of his habeas petition. See § 2253(c)(1)(A); Greene v. Tennessee Dep't of Corrections, 265 F.3d 369 (6th Cir. 2001) (a state prisoner who seeks habeas corpus relief under § 2241 must obtain a certificate of appealability to bring an appeal).
Section 2253(c)(2) states, in pertinent part: "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." See also Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997). A district court has the power to deny a certificate of appealability sua sponte. Allen v. Stovall, 156 F. Supp.2d 791, 798 (E.D. Mich. 2001).
For the reasons stated above, the Court finds that Petitioner has failed to make a substantial showing of the denial of a constitutional right. Therefore, the Court shall deny any certificate of appealability that may be requested in this matter.
Conclusion
For the reasons stated above, IT IS ORDERED that Petitioner's Motion for Summary Judgment is DENIED.
IT IS FURTHER ORDERED that Petitioner's application for a writ of habeas corpus is DENIED and that a certificate of appealability shall not issue in this case.
A Judgment consistent with this Opinion shall issue forthwith.