Opinion
Case No. 00-CV-75133-DT
June 29, 2001
MEMORANDUM OPINION AND ORDER
I. Introduction
This matter is pending before the Court on petitioner Glenn S. McCoy's pro se habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner who is serving a sentence of one to five years for carrying a concealed weapon. The habeas petition challenges the decision of the Michigan Parole Board ("Parole Board") to rescind Petitioner's parole date.
Because Petitioner attacks the execution or manner in which his sentence is served, as opposed to his conviction, he should have filed his habeas petition under 28 U.S.C. § 2241. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999); In re Slatton, 165 F.3d 28, ___, No 97-0378, 1998 WL 661148, at *3 (6th Cir. Sept. 1, 1998).
The record before the Court indicates that, on October 9, 1997, the Parole Board voted to release Petitioner on parole as of January 1, 1998. Petitioner subsequently was approved for electronic monitoring. On December 16, 1997, the Michigan Department of Corrections ("MDOC") charged Petitioner with escape from community placement, and on December 18, 1997, Petitioner was arrested and charged with assault and battery and carrying a concealed weapon. As a result of the criminal charges, MDOC charged Petitioner in misconduct proceedings with possession of dangerous contraband and assault and battery. On December 30, 1997, the Parole Board suspended Petitioner's parole date.
On January 2, 1998, the state criminal charges against Petitioner were dismissed without prejudice on the grounds that there was insufficient evidence and the complaining witness failed to appear in court. Nevertheless, on January 15, 1998, an MDOC hearing officer found Petitioner guilty of escape, assault and battery, and possession of dangerous contraband. On March 31, 1998, the Parole Board voted to rescind Petitioner's projected release date.
Petitioner appealed the Parole Board's decision to the Wayne County Circuit Court. The circuit court affirmed the Parole Board's decision and dismissed Petitioner's appeal. See McCoy v. Michigan Parole Bd., No. 98-814906 AP (Wayne County Cir. Ct. Nov. 2, 1998). Petitioner appealed the circuit court's decision to the Michigan Court of Appeals, which denied leave to appeal for lack of merit in the grounds presented. See McCoy v. Parole Bd., No. 215917 (Mich.Ct.App. Apr. 20, 2000). The Michigan Supreme Court denied Petitioner's subsequent application for leave to appeal because the court was not persuaded that the questions presented should be reviewed. See McCoy v. Michigan Parole Bd., No. 117069 (Mich.Sup.Ct. Oct. 30, 2000).
On December 18, 2000, Petitioner filed his habeas corpus petition in which he asserts that the Parole Board violated MICH. COMP. LAWS § 791.236 and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Respondent urges the Court to deny the habeas petition because Petitioner's claims lack merit and are not cognizable on federal habeas corpus review.
II. Discussion
Petitioner claims that the Parole Board violated his right to procedural due process when it: (1) held a rescission hearing more than 45 days after receipt of new information; (2) failed to give him proper notice at least ten days before the rescission hearing; and (3) relied on "incompetent" evidence. In Michigan,
parole shall not be rescinded unless an interview is conducted by 1 member of the parole board. The purpose of the interview is to consider and act upon information received by the board after the original parole release decision. A rescission interview shall be conducted within 45 days after receiving the new information. At least 10 days before the interview, the parolee shall receive a copy or summary of the new evidence that is the basis for the interview. An amendment to a parole order shall be in writing and is not effective until notice of the amendment is given to the parolee.
MICH. COMP. LAWS § 791.236(3) (emphasis added).
The state circuit court determined that the Parole Board held a timely rescission hearing, but failed to provide sufficient notice of the procedures or content of the hearing. According to the circuit court, the Parole Board scheduled another interview as a result of the deficient notice and provided a proper summary of the evidence and explanation of the procedures before the second interview. The circuit court concluded that the first interview was timely, the delay in the second interview was intended to benefit Petitioner, and § 791.236 was followed satisfactorily.
Even if the Parole Board violated the time requirements of § 791.236, the writ of habeas corpus may be granted only if Petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241 (c)(3) and 2254(a). Consequently, Petitioner's argument that the Parole Board violated state law is not a basis for federal habeas corpus relief. Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000) (citing Pulley v. Harris, 465 U.S. 37, 41 (1984)).
Furthermore, Petitioner had no constitutional right to parole, Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987); Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 7 (1979), even after the Parole Board approved his release, Jago v. Van Curen, 454 U.S. 14, 17 (1981). He also had no inherent right to parole under state law. The Parole Board has broad discretion in determining whether to grant parole. In re Johnson, 219 Mich. App. 595, 596 (1996); see also MICH. COMP. LAWS § 791.234(9) (stating that "a prisoner's release on parole is discretionary with the parole board"); MICH. COMP. LAWS § 791.236(2) (stating that "[a] parole order may be amended or rescinded at the discretion of the parole board for cause"). "Transfer to a pre-release center may buttress an inmate's subjective expectation that he will be released on parole, but such a transfer obviously cannot create a legitimate claim of entitlement to release." Inmates of Orient Corr. Institute v. Ohio State Adult Parole Auth., 929 F.2d 233, 238 (6th Cir. 1991). Because Petitioner had no protected liberty interest in parole, he had no right to expect the Parole Board to follow state procedural rules as a matter of federal due process. Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994); Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990).
Petitioner relies on Morrissey v. Brewer, 408 U.S. 471 (1972), and Wolff v. McDonnell, 418 U.S. 539 (1974), to support his due process claims. However, the due process protections established in Morrissey and McDonnell apply to parole revocations and inmate disciplinary proceedings, respectively. See Morrissey, 408 U.S. at 484-89; Wolff 418 U.S. at 564-70. Neither are applicable in this case where the contested issue is rescission of parole. In fact, the Supreme Court has held that the Due Process Clause is not violated when a parole board rescinds a projected parole date without any hearing. See Van Curen, 454 U.S. at 21.
III. Conclusion
Petitioner has not demonstrated that he is in custody in violation of the Constitution. Accordingly, the application for the writ of habeas corpus is DENIED.