Summary
holding that parole denial does not implicate the Double Jeopardy Clause because it does not extend a sentence beyond original term imposed by court
Summary of this case from Clark v. Ohio Adult Parole Auth.Opinion
Case No. 00-10487-BC
December 2, 2002
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Steven E. Stewart, presently confined at Camp Koehler in Kincheloe, Michigan, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application filed pro se, the petitioner attacks the Michigan Parole Board's denial of his release on parole, resulting in his continued confinement. The Court construes the claims as ones brought under 28 U.S.C. § 2241 because the petition challenges the execution or manner in which the sentence is served. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999). Nonetheless, because the petitioner has no right to parole, the claims asserted lack merit and will be denied.
I.
In August of 1998, the petitioner was sentenced on his guilty plea to two and a half years imprisonment for sale or use of credit cards unlawfully obtained. The petitioner subsequently pleaded guilty in another case to attempted assault with intent to cause great bodily harm less than murder. The petitioner committed the assault offense while the credit card offense was pending. In June of 1999, the petitioner was sentenced to three to five years imprisonment for the assault conviction.
On September 6, 2000, the petitioner was denied parole. The parole board noted that the petitioner's assault crime involved a family member or acquaintance and an excessive use of force, and demonstrated an established pattern of assaultive behavior. The parole board also found that the petitioner's property crime arose in a multiple offender situation, involved the intent to defraud and the receiving and concealing of stolen property, and showed a betrayal of trust. The parole board concluded that the petitioner has an extensive criminal history involving similar behavior including criminal convictions as a juvenile, a history of violent misdemeanors, and a history of drug and alcohol related crimes.
The petitioner also has a history of probation failure and a polysubstance abuse problem of long duration. Prior to his most recent conviction of attempted assault with intent to do great bodily harm, the petitioner had six adult felony convictions and twenty-two misdemeanor convictions beginning at age 18. He is now 29 years old. Michigan Department of Corrections Presentence Investigation Report ("PSIR") Cover Sheet. The PSIR states that:
Based on the defendant's extensive criminal history and poor performance while under supervision, he is not considered a good candidate for community supervision. It is the Department of Corrections' recommendation that he be incarcerated for as long as the law will allow. The defendant's prior record shows that he is unwilling to follow the law.
PSIR at 1.
The record before the Court indicates that the petitioner inflicted serious injuries upon his victim Mindy Maciel by beating and kicking her in the head, leg, and side. Parole Eligibility Report at 1. A letter from the Officer Doug Muxlow of the City of Lapeer Department of Public Safety states that, upon leaving the courtroom after his arraignment on the assault charge, the petitioner turned toward the victim and said, "`I'll kill you bitch when I get out.'" Letter dated July 27, 1998, attached to Basic Information Report.
In a hand-written letter signed by the petitioner and dated May 26, 1999, the petitioner states that he was in a relationship with the victim for two years and had several fights before the assault. The petitioner states that he and the victim had been drinking and gotten into an argument before "this occurred." The petitioner's letter of May 26, 1999, is attached to the PSIR as the offender's version of the offense. The petitioner does not admit or deny the assault in his letter. Except for the above references to drinking and arguing, the petitioner does not attempt to explain why he assaulted the victim. Regarding the victim, the petitioner states:
I must feel that since I been incarcerated I have come a long ways of getting myself together. I know what type of person she is and how much damage she's done to my life. I know that I don't want anything to do with her ever again. The petitioner filed his habeas corpus petition on or about January 17, 2001. He alleges that the Michigan Parole Board has deprived him of due process and improperly denied him release on parole. The petitioner claims that the parole board (1) improperly denied him parole solely on the basis of his prior criminal history, (2) failed to allege reasons by he was denied parole, (3) improperly denied him parole based on his failure to participate in assaultive offender's therapy, (4) improperly denied him parole when he scored a high probability of parole on the guidelines. In a letter seeking a new parole determination hearing, the petitioner also alleged that two female parole board members were biased against him because the victim of his assault was a female. The respondent urges the Court to deny the habeas petition on the grounds that the petitioner's claims are state law claims not cognizable in federal habeas corpus and lack merit.
II. A.
The Court has already addressed the legal question of whether prisoners have due process rights to parole in Juarez v. Renico, 149 F. Supp.2d 319 (E.D.Mich. 2001). There, the Court held that offenders have no constitutional right to be placed on parole, citing Greenholtz v. Inmates of Nebraska Penal Corr. Complex, 442 U.S. 1, 7 (1979). Juarez, 149 F. Supp.2d at 322. "The Michigan parole statute does not create a right to be paroled.Because the Michigan Parole Board has discretion whether to grant parole, a defendant does not have a protected liberty interest in being released on parole." Ibid (citation omitted).
Nor has the petitioner alleged that the decision to deny him parole violated his rights under the Equal Protection Clause. "Absent substantial evidence of an arbitrary and capricious abuse of discretion amounting to a denial of a constitutional right, and absent evidence of a decision based on an unconstitutional factor such as an applicant's race, sex, religion, or prior exercise of protected constitutional rights," id. at 324, this Court will not interfere with the decision of the Michigan Parole Board to award an applicant habeas corpus relief.
B.
The petitioner further contends that the parole board's denial of parole violates the prohibition against double jeopardy.
There is no merit to this claim.
The petitioner was lawfully sentenced to three to five years for attempted assault with intent to do great bodily harm less than murder. The maximum penalty for assault with intent to do great bodily harm less than murder for a first offense is imprisonment for not more than ten years. Mich. Comp. Laws § 750.84. The punishment for an attempt may not exceed one-half of the greatest punishment which might have been imposed if the offense attempted had been completed. People v. Loveday, 390 Mich. 711, 715-16, 212 N.W.2d 708, 710 (1973). If an offense attempted is punishable by imprisonment for five years or more, the maximum penalty for an attempt conviction is five years imprisonment. Mich. Comp. Laws § 750.92(2). The petitioner was sentenced to three to five years. That term was within the limits authorized by the applicable statutes.
The petitioner has not demonstrated that he suffered any double jeopardy violation. The Fifth Amendment, applicable to the States through the Fourteenth Amendment, protects against prosecution for the same offense after an acquittal, prosecution for the same offense after conviction, and multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 801-03 (1989); Hampton v. Hobbs, 106 F.3d 1281, 1288 (6th Cir. 1997). The denial of parole release to the petitioner did not unlawfully extend his sentence beyond the original term imposed by the trial court. Rather, the denial merely requires that he serve the full sentence authorized by statute. Hence, he has not suffered multiple or increased punishment for his offense.
III.
The petitioner has not demonstrated that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3).
Accordingly, it is ORDERED that the application for the writ of habeas corpus is DENIED.