OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

DAVID M. LAWSON, United States District Judge

The petitioner, Dion Samuel Goodell, while confined at the Pine River Correctional Facility ("Pine River") in St. Louis, Michigan, filed this pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, the petitioner contends that his constitutional rights were violated when (1) the Michigan Department of Corrections (MDOC) failed to award him good time or disciplinary sentence credits against his sentence for felony firearm, Mich. Comp. Laws § 750.227b, and (2) his right to due process of law was violated in a major misconduct proceeding resulting in a failure to award him sentence credits. The respondent has filed a response, contending that the petitioner's claim of entitlement to sentence credits against his felony firearm sentence is a state law claim not cognizable in a federal habeas corpus proceeding and that the petitioner's claim regarding his major misconduct is procedurally defaulted. The Court finds that the petition does not contain a proper challenge to custody based on violation of the Constitution or federal laws. The petition, therefore, will be dismissed.

I.

The petitioner was convicted following a jury trial in the Bay County, Michigan Circuit Court on June 23, 1999 of one count of carrying a firearm with unlawful intent, Mich. Comp. Laws § 750.226, and one count of possession of a firearm during the commission of a felony (felony firearm). Mich. Comp. Laws § 750.227b. The petitioner was sentenced to three years probation on his carrying a firearm with unlawful intent conviction to be served consecutively to his mandatory two year term of imprisonment for his felony firearm conviction. The Michigan Court of Appeals affirmed the petitioner's convictions. People v. Goodell, 2001 WL 1179678 (Mich.Ct.App. Oct. 5, 2001) (per curiam). There is no indication in the record whether the petitioner sought leave to appeal in the Michigan Supreme Court.

The petitioner has now completed his custodial sentence on the felony firearm conviction, was released from the Pine River facility, and is currently serving his probationary sentence under the supervision of the Bay City Probation and Parole Office.

The petitioner seeks a writ of habeas corpus ordering an award of sentence credits.

II.

Because the petitioner has been released from prison and is serving a sentence of probation, the Court must first address the preliminary questions of whether the petitioner is "in custody" within the meaning of 28 U.S.C. § 2254(a), and whether the petitioner's release from prison renders his claim moot.

In Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), the Supreme Court stated that "[i]t is clear, not only from the language of §§ 2241(c)(3) and 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody." Whether a habeas corpus petitioner is in custody for purposes of §§ 2241 and 2254 is determined at the time that the complaint is filed. Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Although a prisoner's release from custody subsequent to the filing of the complaint may render his case moot, such a release does not affect the custody question. Moreover, the term "custody" is not limited solely to physical confinement. Sanders v. Freeman, 221 F.3d 846, 850-51 (6th Cir. 2000). For instance, persons on parole, probation or bail may be "in custody" for purposes of §§ 2241 and 2254. See, e.g., Jones v. Cunningham, 371 U.S. 236, 240-41 (1963) (parole); Hensley v. Municipal Court, 411 U.S. 345, 349 (1973) (bail); McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir. 1989) (probation).

"After a petitioner's sentence for a conviction has completely expired, the collateral consequences of that conviction are insufficient to render him `in custody' under § 2254(a)." Clemons v. Mendez, 121 F. Supp.2d 1101, 1102-03 (E.D. Mich. 2000) (citing Maleng v. Cook, 490 U.S. 488, 492 (1989) (additional internal quotation omitted)). The petitioner has apparently fully served his sentence for felony firearm. However, the petitioner was in physical custody for that sentence when the petition was filed and remains on probation, a form of custody, at the present time. Therefore, this Court concludes that the petitioner has satisfied the habeas corpus "in custody" requirement.

Nor is this case moot. The issues of custody and mootness are distinct. See, e.g., Ward v. Huron County Circuit Judge Knoblock, 738 F.2d 134, 138-39 (6th Cir. 1984). The petitioner contends that he should have been awarded sentence credits against his felony firearm sentence and that an unconstitutional major misconduct guilty ruling prevented him from earning additional sentence credits. The petitioner is no longer serving a sentence of physical custody. However, the petitioner is in custody on a probation term which was imposed consecutively to his felony firearm sentence. A prisoner who is serving consecutive state sentences is "in custody" and may attack the sentence scheduled to run first, even after it has expired, until all sentences have been served. Garlotte v. Fordice, 515 U.S. 39, 46-47 (1995). Moreover, a retroactive award of sentence credits against the petitioner's felony firearm sentence would presumably set back the date on which he would be credited with beginning his probation term on his unlawful carrying a firearm sentence. Therefore, a retroactive award of sentence credits against the petitioner's apparently expired felony firearm sentence would shorten his time on probation — a form of custody — for his remaining sentence. Accordingly, this Court concludes that the petitioner's case is not moot, despite his release from physical custody after completion of his sentence for felony firearm, as long as his probation continues.

III.

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA) altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because the petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.

As amended, 28 U.S.C. § 2254(d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct.").

The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . .

A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.

Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable application" as follows:

[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable.

[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Id. at 409-11 (emphasis in original).

With this standard in mind, the Court proceeds to the merits of the petition for a writ of habeas corpus.

A.

The petitioner contends that the MDOC has improperly denied him one-hundred sixty-eight days sentence credits against his felony firearm sentence because the MDOC has, since 1977, followed the pronouncement of then-Attorney General Frank J. Kelley who issued an opinion that prisoners convicted of felony firearm are not entitled to earn sentence credits under Mich. Comp. Laws § 750.227b. See Op. Mich. Atty. Gen. 1977, No. 5208, at 160. The felony-firearm statute provides:

(1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 [carrying concealed weapons] or section 227a [unlawful possession of pistols by licensee], is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.

(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony.

(3) The term of imprisonment imposed under this section shall not be suspended. The person subject to the sentence mandated by this section shall not be eligible for parole or probation during the mandatory term imposed pursuant to subsection (1).

Mich. Comp. Laws § 750.227b.

Construing the statute, Attorney General Kelley concluded that to give effect to the statute's command that defendants convicted of felony firearm serve a "mandatory term" of two years for a first offense, five years for a second offense, or ten years for a third or subsequent offense, such prisoners were ineligible to earn good time or sentence credits against their sentences for felony firearm. The petitioner maintains that his right to due process of law was violated when the MDOC did not grant him one-hundred sixty-eight days sentence credits on his felony firearm sentence. This Court finds no due process violation.

There is no right under the Constitution to earn or receive sentence credits. Hansard v. Barrett, 980 F.2d 1059, 1062 (6th Cir. 1992). Nor is there any fundamental right to parole or to release from a sentence of incarceration that has itself been lawfully imposed. See Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 7 (1979). Michigan law and regulations do not create a right to parole or early release. Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990); Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc); Lee v. Withrow, 76 F. Supp.2d 789, 792-94 (E.D. Mich. 1999).

Because the gain or loss of sentence credits is a state law issue, the petitioner's claim is not cognizable on federal habeas review. See Cook v. Stegall, 56 F. Supp.2d 788, 797 (E.D. Mich. 1999). The petitioner, therefore, has not established that he was held in custody in violation of the Constitution or laws of the United States. He has thus failed to state a claim upon which habeas relief could be granted. Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000).

The petitioner's claim that he is entitled under Michigan law to sentence credits against his felony firearm sentence does not entitle him to habeas relief and will be denied.

B.

The petitioner next contends that he was denied due process of law in a major misconduct proceeding. The petitioner contends that the guilty finding in the misconduct proceeding resulted in his failure to earn sentence credits which he would otherwise earned. This claim does not entitle the petitioner to habeas relief for several reasons.

A claim of a federal constitutional violation in a prison misconduct proceeding resulting in the loss of sentence credit is cognizable in a federal habeas corpus action. Preiser, 411 U.S. at 500. Habeas corpus provides a basis for attacking in federal court the revocation of sentence credits or the extension of an early release date after the petitioner exhausts his available state remedy. "[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Id.

A threshold question is whether the petitioner exhausted state remedies for his claims. The doctrine of exhaustion of state remedies requires a state prisoner to "fairly present" their claims to the state courts before raising those claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The petitioner acknowledges that he has not presented the challenge to his prison misconduct conviction to the Michigan Court of Appeals and the Michigan Supreme Court. Normally, the failure to exhaust state court remedies for even one claim requires dismissal of the entire petition. Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999) (citing Rose v. Lundy, 455 U.S. 509, 522 (1982)), cert. denied, 530 U.S. 1203 (2000). However, the failure to exhaust state remedies is not an absolute bar when, as here, the claims are plainly meritless and it would be a waste of time and judicial resources to require additional court proceedings. Id. Accordingly, in the interest of judicial economy, the Court will proceed to address the merits of the petitioner's claims.

The petitioner's claim that an unlawful prison misconduct proceeding deprived him of sentence credits fails because under Michigan law he was not entitled to earn sentence credits against the only sentence for physical custody which he was serving, his mandatory two-year prison term for felony firearm. The matter of disciplinary credits is governed by Mich. Comp. Laws § 800.33. The credits are applied to the minimum and maximum sentences that an inmate is serving, making the inmate eligible for parole sooner than otherwise would be the case. No credit is awarded during a month when an inmate is found guilty of major misconduct. Further, upon review of the inmate's institutional record, the warden may order forfeiture of all or a portion of the inmate's accumulated disciplinary credits if the inmate is found guilty of such major misconduct as escape or inciting to riot. Forfeited credits may be restored by the warden at a later date, upon review and recommendation of the disciplinary credit committee. However, even if the petitioner had never been charged and found guilty of prison misconduct, he could not have earned sentence credits against his mandatory felony firearm sentence. See Op. Mich. Atty. Gen. 1977, No. 5208, at 160 (harmonizing sections 750.227b and 800.33). Therefore, the petitioner cannot show that an improper finding of prison misconduct deprived him of the ability to earn sentence credits against this sentence. Michigan's sentence credit statute makes no provision for earning credit against a term of probation and sentence credits may not be earned against a felony firearm sentence. Therefore, this claim is too speculative to merit habeas relief.

Finally, the petitioner's allegation that an improper misconduct hearing violated his constitutional rights fails because he has not shown that he suffered a deprivation otherwise protected by the Due Process Clause. The petitioner does not allege that an improper finding of prison misconduct resulted in the forfeiture of earned sentence credits. Although designated as a major misconduct, the prison misconduct at issue in this claim was not serious. The petitioner was charged and found guilty of being "out of place." His punishment for this offense was three days "toplock," which consists of confinement to the prisoner's cell except for limited release periods, such as for meals.

To state a claim alleging the violation of a liberty interest without procedural due process, an inmate must first establish that he enjoyed a protected liberty interest. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460 (1989). The Supreme Court has held that the Due Process Clause is aimed at protecting no more than "the most basic liberty interests in prisoners," Hewitt v. Helms, 459 U.S. 460, 467 (1983), and that it will not protect against "every change in the conditions of confinement having a substantial adverse impact" on inmates. Sandin v. Conner, 515 U.S. 472, 478 (1995). Prisoners' liberty interests are typically derived from two sources: the Fourteenth Amendment Due Process Clause and state statutes or regulations. Thompson, 490 U.S. at 460-61. In Sandin, however, the Supreme Court determined that state-created liberty interests in this context will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection of the Due Process Clause of its own force, nonetheless imposes atypical and significant hardships on the inmate in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 484.

There is no unfettered right to out-of-cell exercise or movement under Michigan law that supercedes disciplinary actions in all cases; the right is narrowly drawn. The petitioner does not allege that he was sanctioned to more than "toplock" for his prison misconduct. Further, this sanction was for only three days. This sanction was not an atypical, significant hardship sufficient to require due process protections. This is an additional, alternative reason why the petitioner's challenge to his prison misconduct guilty finding does not entitle him to habeas relief.

IV.

This Court concludes that the petitioner Goodell is not entitled to habeas corpus relief under any of the claims set forth in the present petition. The petitioner has not shown that he is entitled to habeas corpus relief on his claim that he was improperly denied sentence credits against his felony firearm sentence or that he was denied due process of law in a prison misconduct proceeding denying or depriving him of sentence credits.

Accordingly, it is ORDERED that the Petition for a Writ of Habeas Corpus is DENIED.

It is further ORDERED that the petitioner's Motion for Partial Summary Judgment [dkt #5] and Motion for Order to Show Cause [dkt #10] are DENIED AS MOOT.