Opinion
Case No. 1:06-cv-266.
May 22, 2006
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that Petitioner is not entitled to habeas corpus relief.
Discussion
I. Factual allegationsPetitioner is presently incarcerated at the Deerfield Correctional Facility. After pleading nolo contendere in the Wayne County Circuit Court, Petitioner was convicted of one count of Aggravated Stalking in violation of MICH. COMP. LAWS § 750.411i. On March 26, 2003, Petitioner was sentenced to eight years and placed on probation. Petitioner subsequently violated his probation, and was resentenced on July 1, 2004 to a minimum custody term of three years and four months, and a maximum custody term of five years.
The instant petition concerns the denial of Petitioner's parole by the Michigan Parole Board on March 23, 2006. A parole board member advised Petitioner that his parole was being denied because: (1) Petitioner was appealing his conviction, which meant that he did not take responsibility for his crime, and (2) Petitioner is an out-of-state resident, which would make it more difficult to supervise him while on parole. Petitioner does not identify what specific federal right he is claiming was violated by the denial of parole, but merely states it was "an illegal and wrongful parole continuance." He seeks an immediate release from prison.
II. Exhaustion of state court remedies
Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). However, the State of Michigan has eliminated the right of a prisoner to appeal a parole denial. See MICH. COMP. LAWS § 791.234(9) (as amended by 1999 Mich. Pub. Acts 191). Consequently, because a state statute prohibits a prisoner from appealing a parole denial, Petitioner has no available state court remedy in which to exhaust his claims. Thus, the Court will address the merits of his claims. Even if Petitioner did have a method to challenge the parole board's decision, such as a state writ of habeas corpus or mandamus, see id., the Court may still deny his action on the merits. See 28 U.S.C. § 2254(b)(2).
III. Merits
The federal courts may issue a writ of habeas corpus to release a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §§ 2241(c), 2254(a). Accordingly, a petition states a claim for federal habeas relief only if it alleges that petitioner is in custody in violation of the United States Constitution or federal laws. Mabry v. Johnson, 467 U.S. 504, 507 (1984). The federal courts have no power to intervene on the basis of a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987) ("The federal habeas court does not act as an additional state appellate court to review a state court's interpretation of its own law or procedure.").
To state a Fourteenth Amendment due process claim, a petitioner must first establish that he has a liberty interest in parole that is entitled to protection by the due process clause. Meachum v. Fano, 427 U.S. 215, 224 (1976); see Bd. of Pardons v. Allen, 482 U.S. 369 (1987). However, there is no constitutional or inherent right to be conditionally released before the expiration of a prison sentence. Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 7 (1979). Although a state may establish a parole system, it has no duty to do so, and thus, the presence of a parole system by itself does not give rise to a constitutionally-protected liberty interest in parole release. Id. at 7; Allen, 482 U.S. at 373. Rather, a liberty interest is present only if state law entitles an inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991).
In Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc), the Sixth Circuit, noting "the broad powers of the Michigan procedural authorities to deny parole," has held that the Michigan system does not create a liberty interest in parole. Subsequent to its decision, the Sixth Circuit has recognized the continuing validity of Sweeton and has continued to find that Michigan's parole scheme creates no liberty interest in being released on parole. See Ward v. Stegall, No. 03-1804, 2004 WL 614581, at *1 (6th Cir. Mar. 24, 2004); Bullock v. McGinnis, No. 00-1591, 2001 WL 180978, at *2 (6th Cir. Feb. 14, 2001); Turnboe v. Stegall, No. 00-1182, 2000 WL 1679478, at *1 (6th Cir. Nov. 1, 2000); Hawkins v. Abramajtys, No. 99-1995, 2000 WL 1434695, at *2 (6th Cir. Sept. 19, 2000); Irvin v. Mich. Parole Bd., No. 99-1817, 2000 WL 800029, at *2 (6th Cir. June 14, 2000); Clifton v. Gach, No. 98-2239, 1999 WL 1253069, at *1 (6th Cir. Dec. 17, 1999). Also, in unpublished decisions, the Sixth Circuit has held that particular parts of Michigan's statutory parole scheme do not create a liberty interest in parole. See Fifer v. Mich. Dep't of Corr., No. 96-2322, 1997 WL 681518, at *1 (6th Cir. Oct. 30, 1997); Moran v. McGinnis, No. 95-1330, 1996 WL 304344, at *2 (6th Cir. June 5, 1996); Leaphart v. Gach, No. 95-1639, 1995 WL 734480, at *2 (6th Cir. Dec. 11, 1995); Vertin v. Gabry, No. 94-2267, 1995 WL 613692, at *1 (6th Cir. Oct. 18, 1995); Neff v. Johnson, No. 92-1818, 1993 WL 11880, at *1 (6th Cir. Jan. 21, 1993); Janiskee v. Mich. Dep't of Corr., No. 91-1103, 1991 WL 76181, at *1 (6th Cir. May 9, 1991); Haynes v. Hudson, No. 89-2006, 1990 WL 41025, at *1 (6th Cir. Apr. 10, 1990). Finally, the Michigan Supreme Court has recognized that there is no liberty interest in parole under the Michigan system. Glover v. Mich. Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999).
The discretionary parole system in Michigan holds out "no more than a mere hope that the benefit will be obtained." Greenholz, 442 U.S. at 11. Until Petitioner has served his maximum sentence, he has no reasonable expectation of liberty. Because Petitioner has no liberty interest at stake, the parole board's failure or refusal to grant Petitioner parole implicates no federal right and, accordingly, his procedural due process claim has no merit.
To the extent Petitioner is claiming that his substantive due process rights were violated by the actions of the parole board, the claim likewise has no merit. Substantive due process protects inmates from arbitrary denials of parole based on impermissible criteria such as race, political beliefs or frivolous factors, such as eye color, even where a prisoner may not have a protected liberty interest. See Mayrides v. Chaudhry, No. 01-3369, 2002 WL 1359366, at *2 (6th Cir. June 20, 2002) ( citing Block v. Potter, 631 F.2d 233, 236 n. 2 (3d Cir. 1980)). Petitioner does not present such allegations here.
In order to demonstrate the arbitrary conduct prohibited by substantive due process, Petitioner must show that the parole board's conduct shocks the conscience and constitutes an "egregious abuse of governmental power." Id. at *2 (citing Cale v. Johnson, 861 F.2d 943, 950 (6th Cir. 1988)), overruled on other grounds by Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999). A determination that a prisoner did not take full responsibility for his crime of conviction cannot reasonably be considered an "egregious abuse of governmental power," even if Petitioner does not agree with that conclusion. Nor, having so concluded, can it reasonably be considered shocking to the conscience for a parole board to decline to release a prisoner merely because he has served his minimum sentence. Accordingly, Petitioner has not alleged a substantive due process claim.
The facts alleged by Petitioner do not support a claim that any other constitutional provision or federal law was violated by the denial of his parole.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner's application pursuant to Rule 4 because he has failed to present a meritorious federal claim.Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This Court's dismissal of Petitioner's action under Rule 4 of the Rules Governing § 2254 Cases is a determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the Court has already determined that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is "somewhat anomalous" for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v. Comm'r of Corr. of the State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was "intrinsically contradictory" to grant a certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner's claims under the Slack standard.
Under Slack, 529 U.S. at 484, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. "A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of petitioner's claims. Id.
The Court finds that reasonable jurists could not find that this Court's dismissal of each of Petitioner's claims was debatable or wrong. Therefore, the Court denies Petitioner a certificate of appealability.
A Judgment consistent with this Opinion will be entered.