Opinion
Civil No. 01-CV-73239-DT
April 30, 2002
MEMORANDUM OPINION AND ORDER DISMISSING HABEAS CORPUS PETITION AS MOOT
I.
Louis Jacob Moser ("petitioner"), presently in the custody of the Michigan Department of Corrections ("MDOC") through parole supervision, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his application, filed pro se on or about August 24, 2001, petitioner attacks his major misconduct guilty finding of escape and his resulting removal from the MDOC's Community Residence Program ("CRP") and return to incarceration in prison. Respondent answered the petition on March 5, 2002. As noted, petitioner was released from prison on parole on April 18, 2002. Consequently, petitioner's application is moot and shall be dismissed.
The MDOC Offender Tracking Information System ("OTIS") indicates that petitioner was released on parole on April 18, 2002. His supervision discharge date is October 1, 2003. The Supreme Court has determined that parole is a form of custody for the purposes of a habeas corpus action. Thus, a petitioner need not be incarcerated to satisfy the habeas corpus in custody requirement. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Sevier v. Turner, 742 F.2d 262, 268-69 (6th Cir. 1984). Jurisdiction is determined at the time the habeas petition is filed. Petitioner was "in custody" at the time he filed his habeas corpus petition; consequently, even petitioner's unconditional release from custody after the petition had been filed would not disturb the court's jurisdiction. DePompei v. Ohio Adult Parole Authority, 999 F.2d 138, 140 (6th Cir. 1993); Van Zant v. Florida Parole Commission, 104 F.3d 325, 327 n. 2 (11th Cir. 1997).
Because petitioner attacks the execution or manner in which his sentence is served, as opposed to his conviction, his habeas petition is properly filed 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).
II.
Petitioner is on parole from a prison sentence for two Michigan convictions of operating under the influence of liquor, third offense. M.C.L. § 257.6256D. On October 1, 1999, petitioner was sentenced to two to five years and one to five years imprisonment for each of two OUIL, third habitual offender, convictions. These crimes occurred within three months of each other and petitioner was on bond for one offense when he committed the second.
In December of 1999, petitioner applied for placement in the MDOC Community Residence Program. Petitioner was accepted in the program. Petitioner first lived with his brother. Later, his request to transfer to his fiancee's residence was approved and he moved there in April of 2000.
Petitioner's location was monitored by an electronic tether while he was in CRP. Petitioner was confined to his fiancee's residence and prohibited from leaving without prior permission of MDOC supervising staff. On June 25, 2000, local police were called to petitioner's fiancee's residence concerning an alleged domestic violence incident involving petitioner, his fiancee, and his fiancee's son. Petitioner's fiancee's son alleged that petitioner hit him, an allegation petitioner denies. Local police filed a report stating that upon their arrival petitioner was irate, appeared to be intoxicated, and admitted drinking a few beers. Petitioner denies having drank any alcoholic beverages. Petitioner's tether registered that he was out of range on that day, i.e., that he was out of his CRP residence without permission. Petitioner denies that he was out of range and attributes this and other similar out of range registrations to a low tether battery and idiosyncratic reactions of the monitoring equipment to its placement in the home and other local electrical conditions.
On June 27, 2000, petitioner was charged with the major prison misconducts of escape for being out of range of his monitoring equipment and substance abuse for consuming alcoholic beverages. A major misconduct hearing was held and the hearing officer's report was issued on July 14, 2000. The escape charge was sustained on the basis of the printout of the tether electronic monitoring equipment. The substance abuse charge was dismissed for lack of relevant and material evidence. As a result, petitioner was reclassified to a higher level of confinement and returned to prison.
III.
In his habeas application petitioner challenges the major misconduct hearing officer's findings sustaining the escape charge and his confinement in prison. Petitioner seeks an order requiring his return to CRP placement, or in the alternative, a new hearing on the escape charge. Petitioner contends that (1) he was denied a protected liberty interest in remaining in his CRP placement without due process of law at his misconduct hearing when testimony was taken from a confidential informant, (2) the hearing officer who conducted the hearing was biased, and (3) the MDOC abused its authority by returning him to prison.
Respondent answered the petition on March 5, 2002. Respondent contends that (1) petitioners due process claim fails because he has no protected liberty interest in remaining in CRP placement, (2) petitioner's allegations of hearing officer bias are conclusory and unsupported, and (3) the MDOC has essentially unfettered discretion to return prisoners enjoying the privilege of CRP placement to prison, so petitioner's abuse of discretion claim must fail. Respondent also contends that petitioner has failed to exhaust state court remedies concerning his claims and adds that, if petitioner is paroled, "his habeas claims are moot because a favorable decision would not entitle him either to another hearing on his misconducts or to immediate discharge of his sentence." Respondent's Answer at 9.
Petitioner's challenge to the MDOC's decision to return him to prison upon a finding that he violated the conditions of his CRP placement is moot because he is no longer incarcerated as a result of this decision. When a defendant challenges a parole revocation but has completed the sentence imposed upon that revocation, his challenge to this revocation is moot unless he can demonstrate the existence of actual collateral consequences resulting from the revocation. See Spencer v. Kemna, 523 U.S. 1, 7-14 (1998). It follows that, when a petitioner challenges a parole denial, but has subsequently been granted parole, his challenge to the earlier denial is moot unless he can show the existence of actual collateral consequences from the earlier denial.
Similarly, petitioner challenges his return to prison for having violated his CRP conditions. However, petitioner has subsequently been released on parole. Petitioner has not alleged the existence of any collateral consequences of the prior action of the MDOC in returning him to prison. Obviously, it did not prevent the parole board from favorably acting on his request for parole release. Since petitioner has not met his burden of showing any collateral consequences, he is not suffering any actual injury that is likely to be redressed by a favorable judicial decision concerning the decision to return him to prison from the CRP program. See id. at 7.
Additionally, petitioner's habeas petition does not challenge his convictions, but challenges respondent's prior decision to return him to prison from CRP placement. Article III of the Constitution limits federal court jurisdiction to "cases" and "controversies." U.S. Const. Art. III; United States Parole Commission v. Geraghty, 445 U.S. 388, 395 (1980). A case becomes moot "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Id. at 396 (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). When a petitioner does not attack the legality of his conviction, but merely contests the imposition and duration of his confinement, the case becomes moot when he is no longer confined. Lane v. Williams, 455 U.S. 624, 631 (1982).
In the present case, petitioner does not attack the validity of his conviction. Rather, he challenges the fact that he was removed from CRP placement and returned to prison. It is undisputed that petitioner was released on parole on April 18, 2002, and remains on parole supervision. Consequently, petitioner has received all the relief he might be entitled to if he prevailed on his claims.
Accordingly, petitioner's claims concerning his removal from the CRP program and his return to prison are moot. Therefore, this Court shall dismiss the petition for a writ of habeas corpus as moot.
Petitioner contends that he was removed from his CRP placement and returned to prison without due process of law. The consideration of a due process claim goes through two steps. First, the Court asks whether a liberty or property interest exists with which the state has interfered. See Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir. 1993). Second, the Court determines whether the procedures attendant upon that deprivation were constitutionally sufficient. See Thompson, 490 U.S. at 460, 109 S.Ct. 1904; Pusey, 11 F.3d at 656. The Fourteenth Amendment to the U.S. Constitution provides that no state shall "deprive any person of life, liberty or property, without due process of law." U.S. Const. amend. XIV, § 1. As petitioner was not deprived of life or property, he is only entitled to procedural due process if he was deprived of "liberty" within the meaning of the Fourteenth Amendment.
The Court notes that the Sixth Circuit Court of Appeals has found that there is no protected liberty interest in being placed in a community residential program or within any particular prison in the state of Michigan. Codd v. Brown, 949 F.2d 879, 882 (6th Cir. 1991) (citing United States Supreme Court precedent that the Due Process Clause of the Fourteenth Amendment does not create such a liberty interest and Luttrell v. Department of Corrections, 143 Mich. App. 527, 535 (1985) as showing that the law of the State of Michigan has not created any such liberty interest). See also, Harrington v. Smokoska, 983 F.2d 1066, 1992 WL 376855 (6th Cir. Mich., Dec. 18, 1992) (Michigan prisoners have "no liberty interest in being placed in a community residential program"); and Williams v. Mason, 883 F.2d 76, 1989 WL 94555 (6th Cir. Mich., Aug. 18, 1989) (same).
The Due Process Clause protects against deprivations of life, liberty, or property without due process of law. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 140-41 (6th Cir. 1997). Absent state interference with a protected liberty interest, petitioner is entitled to no pre-deprivation process whatsoever. See id. at 141; see also Cutshall v. Sundquist, 193 F.3d 466, 478 (6th Cir. 1999). It appears that petitioner had no protected liberty interest in remaining in his CRP placement. Consequently, his claim that he was deprived of this interest without due process would fail.
Petitioner claims that the hearing officer was biased. His only assertion supporting this claim is his contention that the hearing officer considered the testimony of a confidential informant. However, hearing officers may hear evidence offered by confidential informants in prison misconduct cases. In the context of prison disciplinary hearings, the United States Court of Appeals for the Sixth Circuit has held that to accommodate the prison's informant system, the inmate's interest in full disclosure of the evidence against them and the identity of their accusers must be sacrificed. Hensley v. Wilson, 850 F.2d 269, 279 (6th Cir. 1988). Petitioner's allegation that hearing officer bias is shown by the hearing officer's mere taking of evidence from a confidential informant lacks merit. Conclusory allegations, without evidentiary support, do not provide a basis for habeas relief. See, e.g., Workman v. Bell, 160 F.3d 276, 287 (6th Cir. 1998) (conclusory allegations of ineffective assistance of appellate counsel do not warrant habeas relief); Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991) (bald assertions and conclusory allegations do not provide sufficient ground to hold evidentiary hearing in habeas proceedings). Hence, petitioner's claim of hearing officer bias lacks merit.
There is sufficient evidence in the record to support the hearing officer's finding of guilty on the escape charge. It is important to note that not much evidence is needed to support the action of a prison hearing officer or board. The seminal case is Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). Hill, a case involving revocation of good time sentence credits, held that "the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits." Hill, 472 U.S. at 455, 105 S.Ct. at 2774. "Some evidence" is all that is needed. In determining whether a decision of a prison disciplinary board had some evidence, courts are not required to examine the entire record, make an independent assessment of the credibility of witnesses, or weigh the evidence. Hill, 472 U.S. at 455, 105 S.Ct. at 2774. "Instead the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455-56, 105 S.Ct. at 2774. The electronic tether monitoring printout relied upon by the hearing officer to support his guilty finding concerning the escape charge was sufficient to satisfy the "some evidence" test in Hill.
Petitioner's claim that prison officials abused their discretion by removing him from his CRP placement and returning him to prison would fail because no state-created interest in such freedom exists in Michigan, because there are no substantive limits placed on prison officials' official discretion regarding who may be eligible for community placement status. M.C.L. § 791.265(a).
IV.
In summary, federal habeas corpus relief is not warranted under any theory advanced by petitioner. Accordingly, for the reasons stated above, the Court DISMISSES the petition for writ of habeas corpus AS MOOT.JUDGMENT
The above entitled matter having come before the Court on a Petition for Writ of Habeas Corpus, Honorable Paul D. Borman, a United States District Judge, presiding, and in accordance with the Memorandum Opinion and Order entered on April 30, 2002.
IT IS ORDERED AND ADJUDGED that the Petition for Writ of Habeas Corpus be, and the same hereby is, DISMISSED AS MOOT.