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In Tamachaski v. Renico, 2001 WL 1478664 (E.D. Mich. 2001), the court determined that, if a prisoner were entitled to due process of law in the parole release decision making process, that due process of law would be violated where parole board members derived a direct pecuniary interest from decisions adverse to inmates or where parole board members engaged in both adjudicative and executive functions.
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Case No. 01-CV-10096-BC
November 20, 2001
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, Francis C. Tamachaski, presently confined at Mid-Michigan Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his application, filed pro se, petitioner attacks the Michigan Parole Board's denial of his release on parole, resulting in his continued confinement. Petitioner's application does not entitle him to habeas relief, and the petition shall be denied with prejudice.
I.
In 1995, petitioner pleaded guilty to an armed robbery, which he committed while he was on probation for the crimes of assault with intent to commit great bodily harm, felonious assault, and malicious destruction of property. The trial court sentenced petitioner to imprisonment for three to twenty years. On December 8, 2000, the Michigan Parole Board denied petitioner's application for release on parole for the fourth time.
Petitioner filed his habeas corpus petition on March 7, 2001, pursuant to 28 U.S.C. § 2241. He alleges that the Michigan Parole Board has deprived him of due process and improperly denied him release on parole. Respondent urges the Court to deny the habeas petition on the ground that petitioner's claims lack merit.
Although petitioner apparently did not raise his claims in state court, respondent does not contest the omission, and it is clear that a prisoner's right to appeal parole decisions has been eliminated. See Mich. Comp. Laws § 791.234(9); Staff Comment to 2000 Amendment to M.C.R. 7.104(D). The Court deems petitioner's claims exhausted because there "is an absence of available State corrective process." 28 U.S.C. § 2254(b)(1)(B)(i).
II.
Petitioner's first and second grounds for relief are that members of the Parole Board have a pecuniary interest in denying parole and, therefore, they are not neutral and detached decision makers. He argues that the decision of the Parole Board denying him parole release from his sentence deprived him of his right to due process of law guaranteed by the Fourteenth Amendment. Petitioner maintains that the decision makers were not "neutral and detached" because parole board members are appointed by the director of the Michigan Department of Corrections (MDOC) and are not within the state civil service provisions. See Mich. Comp. Laws § 791.231a(1).Pursuant to Mich. Comp. Laws § 791.231a(2), parole board members are appointed for limited terms of years; a member may be reappointed. Further, the director of MDOC "may remove a member of the parole board for incompetency, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office." Id.
Petitioner argues that these provisions subject parole board members to undue pressure to deny parole out of fear of not being reappointed, or of being removed, such that members have a direct, pecuniary interest in issuing parole denials. Petitioner contends that this deprives him of the right to have a "neutral and detached" parole board decide whether to grant or deny parole, thereby denying him due process of law, citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972), for support.
A.
Petitioner has no constitutional right to be released on parole because there is no constitutional right of a lawfully convicted person to be conditionally released before the expiration of a valid sentence. See Greenholtz v. Inmates of Nebraska Penal Corr. Complex, 442 U.S. 1, 7 (1979); Bd. of Pardons v. Allen, 482 U.S. 369, 377 n. 8 (1987). Thus, there is no federal constitutional right to parole. Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990); Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994) ( en banc).
In Michigan, the decision to release a prisoner on parole is a discretionary decision of the Parole Board. In re Parole of Johnson, 235 Mich. App. 21, 24, 596 N.W.2d 202, 204 (1999) (per curiam) (citing Mich. Comp. Laws § 791.234(6)(d) and 791.234(7)). See also Mich. Comp. Laws § 791.234(9). The Michigan parole statute does not create a right to be paroled. Hurst v. Dep't. of Corr. Parole Bd., 119 Mich. App. 25, 28-29, 325 N.W.2d 615, 616 (1982). 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. Canales v. Gabry, 844 F. Supp. 1167, 1171 (E.D. Mich. 1994). "[T]he expectancy of release upon parole is not a constitutionally protected interest where the state holds out `no more than a mere hope that the benefit will be obtained.'" Wright v. Trammell, 810 F.2d 589, 590 (6th Cir. 1987) (quoting Greenholtz, 442 U.S. at 11). Consequently, petitioner does "not have a sufficient liberty interest in his future parole release to be entitled to due process in his parole release proceedings." Sharp v. Leonard, 611 F.2d 136, 137 (6th Cir. 1979). See also Brown v. Lundgren, 528 F.2d 1050 (5th Cir. 1976) (holding that mere expectation of parole release while still in otherwise lawful custody is not so vested as to result in a grievous loss of a protected liberty interest triggering due process protections, if denied by discretionary parole release decision of United States Board of Parole); but see Childs v. United States Bd. of Parole, 511 F.2d 1270 (D.C. Cir. 1974) (holding that denial of parole release is equivalent to denial of same conditional liberty at issue in parole revocation proceedings, mandating due process protections in parole consideration proceedings).
Petitioner contends that parole board members have a pecuniary interest in denying parole requests because members are not protected by civil service rules and risk removal and denial of reappointment by the director of MDOC if they grant parole requests too freely. Petitioner argues that this undue influence likewise violates due process. However, as noted above, petitioner is not entitled to due process of law in the parole consideration decision. Therefore, petitioner's first two claims do not entitle him to habeas relief.
B.
Alternatively, if it was determined that petitioner was entitled to due process of law in the parole release decision making process, his habeas corpus petition must be denied nonetheless because petitioner has not shown that the lack of civil service protection for parole board members deprived him of a "neutral and detached" decision maker.
In the parole revocation context, the Supreme Court has stated that due process requires that a neutral and detached decision maker determine whether there was probable cause to believe that the parolee had violated the conditions of his parole. The Supreme Court stated that the requirements of neutrality and detachments are satisfied where "an evaluation of whether reasonable cause exists to believe that conditions of parole have been violated is made by someone such as a parole officer other than the one who has made the report of parole violations or has recommended revocation." Morrissey, 408 U.S. at 486. Thus, a decision maker is sufficiently "neutral and detached" in the parole revocation context if he or she is not the same person who has accused the parolee of violating his or her parole. Neutrality and detachment do not require civil service protection, employment by a different agency, a law degree, or election or appointment as a judicial officer. See id. at 489.
The parole consideration process is not perfectly analogous. However, petitioner does not allege that any of the parole board members who denied him parole release were responsible for his arrest or prosecution, or stated prior to his parole consideration hearing that they considered him unfit for parole release.
"The administrative process `requires the appearance of fairness and the absence of a probability of outside influences on the adjudicator. . . .'" Hammond v. Baldwin, 866 F.2d 172, 176 (6th Cir. 1989) (quoting Utica Packing Co. v. Block, 781 F.2d 71, 77 (6th Cir. 1986)). "`[A] fatally biased decisionmaking process is in itself a constitutional injury sufficient to warrant injunctive relief.'" Id. (quoting United Church of the Medical Center v. Medical Center Comm'n, 689 F.2d 693, 701 (7th Cir. 1982)). "`[T]hose with substantial pecuniary interest in legal proceedings should not adjudicate [administrative] disputes.'" Id. at 177 (quoting Gibson v. Berryhill, 411 U.S. 564, 579 (1973)).
For instance, "the Supreme Court has held that the Fourteenth Amendment right to due process is certainly compromised where the decision maker has a `direct, personal, substantial pecuniary interest' in the proceedings." DePiero v. City of Macedonia, 180 F.3d 770, 777 (6th Cir. 1999) (quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927)), cert. denied, 528 U.S. 1105 (2000). In Tumey, the direct, personal, substantial pecuniary interest in the outcome of the proceedings was cash payments the mayor (who also functioned as a judge) would receive if the defendant were convicted, but would not receive if the defendants were acquitted.
However, bias in the administrative decision making process "must be more than a general tendency of an administrative agency to serve the executive under which it derives its authority." Hammond, 866 F.2d at 176. "[T]he cases in which a bias has been found to exist, in violation of due process, involve one of two characteristics: either the decisionmakers derived a direct, pecuniary interest from decisions adverse to claimants or the decisionmaker was engaged in both adjudicative and executive functions in violation of the principle of separation of powers." Id. at 177 (citations omitted).
The decision makers in this case were not engaged in both adjudicative and executive functions. As Parole Board members, their duties were strictly adjudicative. The issue is whether "the decisionmakers derived a direct, pecuniary interest from decisions adverse to [petitioner.]" Id.
The Parole Board members who reviewed petitioner's case likely had a "pecuniary interest" in performing their duties well, that is, to avoid being removed from salaried positions for "incompetency, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office." Mich. Comp. Laws § 791.231a(2). However, there was no direct pecuniary interest to be gained from denying release on parole. The bias alleged is the "general tendency of an administrative agency to serve the executive under which it derives its authority," and "a general bias in favor of the alleged state interest or policy" is an insufficient basis for disqualifying decisionmakers. Hammond, 866 F.2d at 176-177.
Petitioner speculates that parole board members must deny parole release to at least some applicants who actually should be granted parole release in order to keep their jobs. Petitioner claims that the 1992 amendment to Mich. Comp. Laws § 791.231 a compels this conclusion. The legislative amendment removes parole board members from the protection of the State Civil Service Act, and also authorized the director of MDOC to remove parole board members for "incompetency, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office." Mich. Comp. Laws § 791.231a(2). To conclude from this language that a parole board member may be removed as a result of a decision to grant or deny parole in an individual case or class of cases overstates the argument. Further, this claim is too speculative to entitle petitioner to habeas relief.
The parole release decision is based on a complex of factors covering, inter alia, psychiatry, criminology, psychology, penology, and human relations. The parole release decision is a prognostic determination of a prospective parolee's suitability for release and involves the parole board members' exercise of discretion. Parole decision-making centers on making a diagnostic and predictive determination with respect to whether the rehabilitation of the prisoner and the welfare of society generally would be best served by granting the prisoner conditional freedom rather than by his continued physical confinement.
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, the Court should not interfere with the Parole Board's exercise of its discretion in denying an application for parole. This Court is not persuaded that petitioner was denied due process of law in the parole decision making process.
C.
Moreover, there is no basis to conclude from the facts in this case that the Parole Board's decision was the direct result of a pecuniary interest in denying parole. The Parole Board denied petitioner's application for parole on December 8, 2000, because it lacked reasonable assurance that petitioner would not become a menace to society or to the public safety. The Parole Board stated that petitioner's assaultive risk level was high or very high, indicating a high probability of committing a new violent offense if released on parole. The Parole Board noted that petitioner's crime involved substance abuse, multiple offenders, victimization of a stranger, injury, a dangerous weapon, the touching or discharge of a weapon, and intent to permanently injure. The Parole Board also noted that petitioner had a history of drug- or alcohol-related crimes and that he had received misconduct tickets while incarcerated. Petitioner has a history of violating probation and a long history of substance abuse involving more than one substance.
The Court finds that neither of the characteristics needed to show bias (a direct, pecuniary interest in making a decision adverse to the claimant or violation of the principle of separation of powers) is present here. Consequently, even assuming that petitioner had a protected liberty interest in parole, no violation of due process occurred.
III.
Petitioner's third and final ground for relief is that the Parole Board failed to provide an adequate written explanation of its reasons for denying parole in violation of state law. This claim has no merit because the Court may not grant the writ of habeas corpus on the basis of a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984). Moreover, the Parole Board was not required to follow its own procedural statutes and regulations as a matter of federal due process. Sweeton v. Brown, 27 F.3d 1162, 1165 (6th Cir. 1994) ( en banc).
IV.
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.