Opinion
Civil No. 01-CV-73340-DT
July 30, 2002
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Emerson A. Clark ("petitioner") presently confined at Pugsley Correctional Facility in Kingsley, Michigan, seeks the issuance of a writ of habeas corpus. Although the petitioner was filed pursuant to 28 U.S.C. § 2254, this Court shall construe the petition as filed under 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.
See In Re Slatton, 165 F.3d 28, 1998 WL 661148 (6th Cir. 1998) (habeas petition challenging procedures of Parol Authority "can only be brought under § 2241 for habeas relief"); Johnson v. Tyszkiewicz, 2001 WL 278172, *4 (E.D.Mich. February 28, 2001) (construing § 2254 petition challenging Parole Board's decisions as being filed under § 2241).
I. Background and Claims for Relief
In November of 1989, petitioner was sentenced to one to fifteen years imprisonment for committing an assault with intent to rob while armed. M.C.L. § 750.88. Petitioner was paroled in July of 1990. About one year later, he violated parole and was returned to prison. Petitioner was paroled again in September of 1993. A few months later, petitioner violated parole again, but was returned to parole status. In September of 1995, petitioner again violated parole. In March of 1996, petitioner was sentenced to two to ten years imprisonment for larceny from a person.
Petitioner was paroled again in May of 1997. In July of 1997, petitioner was again charged with violating parole. Petitioner was returned to prison and in February of 1998 was sentenced to three to fifteen years imprisonment for assault with intent to rob while unarmed.
The Parole Board denied petitioner parole release in May of 2000 and May of 2001. Petitioner now challenges the Parole Board's most recent decisions to deny him parole. Petitioner filed his habeas corpus petition on September 21, 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 grounds that petitioner's claims are either not cognizable in federal habeas corpus or lack merit.
Although petitioner notes that he did not raise his claims in state court, respondent does not contest the omission, and it appears 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). Alternatively, respondent does not contend petitioner has failed to exhaust state court remedies and the habeas statute does not require the exhaustion of meritless claims. 28 U.S.C. § 2254(b)(2). Therefore, this Court shall not require petitioner to make attempts to exhaust in state court the claims now before this Court. But see, Matson v. Michigan Parole Board, 175 F. Supp.2d 925, 930 (E.D. Mich. 2001)(Cohn, J.) (holding that, because prisoner may be able to challenge denial of parole pursuant to Section 631 of the Revised Judiciary Act and the state courts may consider a claim that the amendment to § 791.234 is unconstitutional, prisoner's habeas challenge to parole denial was unexhausted, requiring dismissal without prejudice.).
The Parole Board last decided to deny petitioner parole release on May 17, 2001. The Board decided to continue petitioner's incarceration until at least August 22, 2002, when his possible parole release will be reconsidered. Parole Board Record ("PBR") at 000009. Petitioner's Parole Guideline Score was 6, indicating that he has a high probability of parole. PBR at 000014. Under Michigan law, when a prisoner's parole guideline score places him or her in the high probability of parole range, the Parole Board may only deny the prisoner parole release upon providing substantial and compelling reasons in support of its decision. M.C.L. § 791.233e(6); Scholtz v. Michigan Parole Board, 231 Mich. App. 104, 106-12 (1998). The Parole Board stated that its substantial and compelling reasons for denying petitioner parole were that: "Crime descriptions for 3 prefixes involve P implying that he had a weapon and attempting to snatch their purses. The 1st 2 prison terms didn't serve as a deterrent for the 3rd offense after being on parole for 1 year. Still view as risk." PBR at 000009.
In denying petitioner parole release on May 18, 2000, the Parole Board stated that its substantial and compelling reasons for denying parole were that the "inmate is serving on A, B, C prefixes. He has shown a consistent pattern of parole violation and a consistent pattern of predatory behavior and violence. Risk if paroled at this time." PBR at 000018. This Court is aware that petitioner is no longer in custody pursuant to the Parole Board's May 18, 2000, denial of parole. Nonetheless, the Parole Board's reasons for denying petitioner parole then may help explain its reasons for denying parole release on May 17, 2001.
The Parole Board also stated as reasons supporting its decision to deny parole that petitioner's assaultive crime victimized a stranger, had multiple victims, and implied a weapon was present. Petitioner's property crime involved taking the property of another. Petitioner has a criminal history that involves drug and alcohol related crimes. Petitioner's assaultive risk level is at least high which is indicative of a high probability of committing a new violent crime while on parole. Petitioner has a demonstrated history of parole failure and new criminal conduct while on parole. Finally, the Parole Board noted that petitioner has a history of substance abuse which is of long standing duration and is related to his criminal behavior. PBR at 000009-000010. The Parole Board concluded that it lacks reasonable assurance that petitioner will not become a menace to society or to the public safety.
Petitioner contends that (1) the Parole Board abused its discretion by denying him parole release based on his prior convictions, (2) the Parole Board failed to give adequate substantial and compelling reasons for denying parole despite his high probability of parole guideline score, thereby denying petitioner due process of law, (3) the Parole Board denied petitioner equal protection by granting parole to other prisoners who had average or low probability of parole guideline scores, while denying him parole, (4) the Parole Board failed to give adequate consideration to petitioner's good conduct and rehabilitative achievements while in custody, and (5) denying him parole and continuing his imprisonment constituted double jeopardy.
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); Board. of Pardons v. Allen, 482 U.S. 369, 377 n. 8 (1987). Thus, there is no federal constitutional right to parole release. Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990); Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994) (en banc), cert. denied, Sweeton v. McGinnis, 513 U.S. 1158 (1995).
In Michigan, the decision to release a prisoner on parole is a broadly 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 statutes do 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). The Michigan parole statutes do not place substantive limits on the discretion of the Parole Board to deny parole and do not make a grant of parole mandatory under any particular set of circumstances. Consequently, Michigan has not created a constitutionally protected liberty interest in being released on parole. Sweeton v. Brown, 27 F.3d at 1164-65; 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).
Because petitioner has no protected liberty interest in parole created by the federal constitution or the State of Michigan, he may not challenge the procedures used to deny him parole as alleged violations of due process of law. See, Thomas v. Morgan, 109 F. Supp.2d 763, 768 (N.D. Ohio 2000).
Petitioner contends that the Parole Board improperly based its decision on his prior criminal and substance abuse record, failed to adequately consider his institutional behavior, and abused its discretion by denying him parole release. However, as noted above, petitioner is not entitled to due process of law in the parole consideration decision. Therefore, petitioner's claims of denial of due process 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. Further, review of the record shows that the Parole Board did not abuse its discretion in denying petitioner parole release. See, Lee v. Withrow, 76 F. Supp.2d 789, 792 (E.D. Mich.)(Duggan, J.) (stating "[w]here a state prisoner is not entitled to mandatory parole, a federal district court, upon a habeas petition, reviews a parole board's decision for an abuse of discretion, asking whether the board's action resulted in an abridgement of a prisoner's constitutional rights.") (citing Wildermuth v. Furlong, 147 F.3d 1234, 1236 (10th Cir. 1998).
Petitioner has three felony convictions in the assaultive and property theft categories. Two of these felonies were committed while petitioner was on probation or parole. A prisoner's prior crimes are appropriate factors to consider in the parole consideration process. M.C.L. § 791.233e(2)(d). While the prisoner's prior record may not alone accurately predict his future dangerousness, particularly if the crimes are quite old, Hopkins v. Michigan Parole Board, 237 Mich. App. 629, 631 (1999), the Parole Board did not consider petitioner's criminal record in isolation. Rather, the Board noted that some of petitioner's criminal and substance abuse history occurred when he was on parole or probation and that petitioner continued to demonstrate an inability to take responsibility for his criminal behavior and decisions. These are appropriate factors for consideration. Moore v. Hofbauer, 144 F. Supp.2d 877, 882 (E.D. Mich. 2001)(Tarnow, J.) (decision not to grant good time credits for time when offender tested positive for illegal drugs and lived in community as a parole absconder not an abuse of discretion). Thus, this Court finds that petitioner's claim that the Parole Board abused its discretion by its consideration of his prior criminal and substance abuse history and failing to adequately consider his institutional behavior lacks merit.
Petitioner contends that he was deprived of equal protection because he was denied parole despite achieving a high probability of parole guideline score, while some other, unnamed prisoners were granted parole after achieving a low or average probability of parole guideline score. This conclusory assertion does not merit relief. The parole release decision is based on a complex of factors including 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. In sum, this Court is not persuaded that petitioner was denied equal protection of the law in the parole decision making process.
C.
Petitioner contends that the Parole Board's denial of parole violates the prohibitions against and cruel and unusual punishment and double jeopardy. These claims lack merit.
There is no federal constitutional right to parole release. Board of Pardons v. Allen, 482 U.S. at 377 n. 8. Petitioner was lawfully sentenced as a fourth felony offender to an indeterminate one to twenty year sentence by the sentencing judge. Because there is no federal constitutional right to parole, the denial of parole and the continued incarceration of a prisoner does not constitute a violation of the cruel and unusual punishment clause of the Eighth Amendment to the United States Constitution. Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992), cert. denied, 506 U.S. 1008, 113 S.Ct. 624, 121 L.Ed.2d 556 (1992); see also Nedea v. Voinovich, 994 F. Supp. 910, 918 (N.D.Ohio 1998). Therefore, requiring a prisoner to serve even his maximum sentence works no constitutional violation upon an inmate. Nedea, 994 F. Supp. at 919 n. 20 (citing Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)).
Petitioner has not demonstrated that he suffered any double jeopardy violation. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794 (1989) (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); United States v. Berry, 977 F.2d 915, 918 (5th Cir. 1992). The denial of parole release to petitioner did not unlawfully extend his sentence beyond the original term imposed by the trial court. Hence, he has not suffered multiple or increased punishment for his offense.
Petitioner's claims of violation of federally protected constitutional rights under the Double Jeopardy Clause and the Eighth Amendment are without substance. A state, granting parole to a prisoner lawfully sentenced to a prison term, has the right to impose conditions of the parole, including a requirement that in the event of violation the parolee shall serve the balance of his original sentence independently of any sentence imposed for any intervening conviction. To require petitioner, who in th past has violated the conditions of his parole while enlarged, to serve the unexpired portion of his original sentence runs afoul of no federal constitutional right or prohibition. It certainly does not constitute cruel and unusual punishment or a violation of double jeopardy. Dalton v. Warden, 216 F. Supp. 600, 603 (D.Md.), cert. denied, Bosler v. Dalton, 373 U.S. 942, 83 S.Ct. 1550, 10 L.Ed.2d 697 (1963).
D.
Petitioner contends that the Parole Board failed to give adequate substantial and compelling reasons to deny parole despite his high probability of parole guideline score. This is a state law claim, because it is only a matter of state law that requires the Parole Board to give such reasons when denying parole to a prisoner who has achieved a high probability of parole guideline score. To the extent that the petitioner challenges the Parole Board statement of substantial and compelling reasons to deny parole, his claim is not cognizable in this proceeding, absent a showing of a denial of fundamental fairness. A determination of whether the Parole Board complied with state law cannot lead to habeas corpus relief. Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) ("federal court may not issue the writ on the basis of a perceived error of state law"); Moore v. Tate, 882 F.2d 1107, 1109 (6th Cir. 1989) ("It is well established that `[w]hile habeas review does not ordinarily extend to state court rulings on the admissibility of evidence an erroneous evidentiary ruling which renders a trial fundamentally unfair warrants a writ of habeas corpus.'") (citing Fuson v. Jago, 773 F.2d 55, 59 (6th Cir. 1985)). The Parole Board found that petitioner's implied use of a weapon in committing his three assaultive offenses and the failure of parole supervision and re-imprisonment to deter him from committing new crimes were substantial and compelling reasons to deny parole. Whether this was a correct and sufficient statement of substantial and compelling reasons under Michigan law to deny parole is not a cognizable claim in federal habeas corpus, although this Court has no reason to doubt that these reasons are sufficient. In any event, this Court is not persuaded that this statement of reasons was so arbitrary and capricious or lacking in substantial and compelling force and factual basis as to constitute a violation of due process or fundamental fairness. Therefore, this claim does not merit habeas relief.
II. Certificate of Appealability
28 U.S.C. § 2253 governs appeals in habeas corpus proceedings. Whether petitioner's habeas corpus petition was brought under § 2254 or brought under § 2241, he must obtain a certificate of appealability before appealing this Court's denial of his habeas petition. See § 2253(c)(1)(A); Greene v. Tennessee Dep't of Corrections, 265 F.3d 369 (6th Cir. 2001) (a state prisoner who seeks habeas corpus relief under § 2241 must obtain a certificate of appealability to bring an appeal). Section 2253(c)(2) states, in pertinent part: "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." See also Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997). A district court has the power to deny a certificate of appealability sua sponte. Allen v. Stovall, 156 F. Supp.2d 791, 798 (E.D.Mich. 2001).
For the reasons stated above, the Court finds that petitioner has failed to make a substantial showing of the denial of a constitutional right. Therefore, the Court shall deny any certificate of appealability that may be requested in this matter.
III. Conclusion
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 and the matter DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability shall not issue in this case.