Opinion
No. 01-CV-72689-DT
June 7, 2002
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Bretton Edward Ferguson (petitioner) presently confined at Pine River Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed prose, petitioner attacks the Michigan Parole Board's revocation of his parole and its subsequent 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 1992, petitioner, then a sixteen year old juvenile waived into adult court, pleaded guilty to arson of a dwelling house, M.C.L. § 750.72. Pursuant to a plea agreement, petitioner waived his probate court appeal and review, his minimum sentence was not to exceed four years, and three additional counts of arson of real property, M.C.L. § 750.73, were dismissed. On November 2, 1992, petitioner was sentenced to an indeterminate sentence of four to twenty years.
In 1997, petitioner was released on a twenty-four month parole term that was to expire on December 30, 1999. On March 27, 1999, petitioner was involved in a riot in East Lansing, Michigan, following a Michigan State University NCAA men's tournament basketball game loss. Petitioner admitted participating in the riot and throwing pieces of a wooden fence and logs on a bonfire burning in the street. On June 23, 1999, petitioner pleaded guilty in the Ingham County Circuit Court to one count of inciting to riot. On July 21, 1999, petitioner was sentenced to one year in jail consecutive to his parole violation proceedings.
On October 5, 1999, petitioner was arraigned on parole violation charges. Petitioner pleaded guilty to the parole violation charge of committing new criminal conduct, i.e., the riot offense. Petitioner also pleaded guilty to the parole violation charge of violating his curfew, as the offense occurred after his curfew time. Petitioner's parole was revoked and he received a twenty-four month continuance of his custodial sentence. Upon completion of this twenty-four month continuance, petitioner was again interviewed by the Parole Board. The Parole Board acted on June 24, 2001, to continue petitioner's sentence of incarceration another twenty-four months, finding that it lacked reasonable assurance that petitioner would not become a menace to society or to the public safety. The Parole Board's Notice of Decision notes that petitioner's property crime showed reckless disregard for persons or property and that he committed a new crime while on parole. Further, the Parole Violation Report dated June 22, 1999, noted that petitioner's prior arson conviction and new felony riot conviction both involved fire and risks to persons and property indicating that petitioner remained a medium to high risk. Petitioner is scheduled for reconsideration for potential parole release on July 31, 2003.
Petitioner filed his habeas corpus petition on July 24, 2001, pursuant to 28 U.S.C. § 2254. Petitioner alleges that the Michigan Parole Board has abused its discretion and deprived him a protected liberty interest in parole release without due process of law by denying 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 appears that a prisoner's right to appeal parole denial 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.).
Petitioner contends that (1) his parole was improperly revoked based on his conviction of a new crime, (2) he was improperly denied parole based on his initial conviction and his conviction of a new crime while on parole, (3) the Parole board improperly subsequently denied him parole release on June 4, 2001, thereby abusing its discretion and depriving him of a constitutionally protected liberty interest in parole release guaranteed by his record of having met the criteria established by the Parole Board for eligibility for release.
A.
The thrust of petitioner's habeas application is his challenge to the Parole Board's most recent decision to deny him release on parole and to defer reconsideration of his parole release until July 31, 2003. However, petitioner also implies that the revocation of his parole for committing a new felony while on parole release constituted an abuse of discretion. See, Memorandum of Law in Support of Writ of Habeas Corpus at 1-2. This claim lacks merit.
Although the Supreme Court in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 11, 99 S.Ct. 2100, 2105-06, 60 L.Ed.2d 668 (1979) held that there is no constitutional right to be conditionally released on parole before the expiration of a valid sentence, once parole has been granted, a parolee has certain constitutional rights before parole can be revoked. Specific rights of parolees were established by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and include: (1) an informal hearing prior to parole revocation; (2) prior written notice of the inquiry, its purpose, and the alleged violations; (3) disclosure to the parolee of the evidence against him; (4) the opportunity to present witnesses and documentary evidence; (5) the right to confront and cross-examine adverse witnesses; (6) a "neutral and detached" hearing body; and (7) a statement of the reasons for revoking parole. Id. at 489, 92 S.Ct. at 2604.
The Supreme Court held that a parolee is entitled to two hearings. First, due process requires holding a "preliminary hearing" to determine whether there is probable cause or reasonable grounds to believe that the parolee has committed acts that would constitute a violation of parole conditions. Id. at 485, 92 S.Ct. 2593 (citations omitted). This preliminary hearing should occur "as promptly as convenient after arrest." Id. Second, a parolee is entitled to a revocation hearing prior to the final decision on revocation by the parole authority. Id. at 487-88, 92 S.Ct. 2593. This revocation hearing "must be tendered within a reasonable time after the parolee is taken into custody." Id. at 488, 92 S.Ct. 2593.
Pursuant to Morrissey, petitioner would have been entitled to a preliminary hearing to establish probable cause for a parole violation. Morrissey, 408 U.S. at 485, 92 S.Ct. 2593. However, in Sneed v. Donahue, 993 F.2d 1239 (6th Cir. 1993), the Sixth Circuit found that a parolee's incarceration for an offense committed while on parole established probable cause for a parole violation, and that, therefore, there was no need for a preliminary hearing. Id. at 1241.
Petitioner committed new criminal conduct on March 27, 1999, at a post-basketball defeat riot at Michigan State University. He was arrested on May 4, 1999, after being identified from videotape of the events. Petitioner received notice of the parole violation charges on May 6, 1999. On June 23, 1999, petitioner pleaded guilty to one count of inciting to riot. Consequently, petitioner's state conviction established probable cause for his parole violation, and there was no need for a preliminary hearing, pursuant to Sneed v. Donahue.
Petitioner received a formal revocation proceeding on August 5, 1999. There are no allegations that the evidence against petitioner was not disclosed, that he was denied the opportunity to present witnesses and documentary evidence, including evidence in mitigation; or the right to confront and cross-examine adverse witnesses. Petitioner has not shown that his case was not decided by a neutral and detached hearing body. The record shows that petitioner received a written statement of the reasons for revoking parole.
The minimal procedural safeguards of Morrissey were fulfilled. Petitioner was given written notice of the claimed violations, disclosure of the evidence against him, the opportunity to be heard and to present witnesses and documentary evidence, and the right to confront and cross-examine adverse witnesses, absent good cause. In addition, petitioner was provided with a neutral and detached fact finder, and a written statement of the reasons for revoking parole. Therefore, petitioner's claim that revocation of his parole was done without due process of law lacks merit.
B.
The petition before this Court focuses on the Parole Board's most recent denial of parole release to petitioner. Petitioner contends that this denial is an abuse of discretion and a denial of a constitutionally protected liberty to which he is entitled because he has met the Parole Board's criteria for parole release eligibility.
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). Petitioner's contention that he has a mandatory protected liberty interest in parole release because he has achieved or accomplished various criteria, including participating is therapy sessions, completing his GED, and completing substance abuse education and an electronics vocational program lacks merit. While these achievements are positive and admirable, the Parole Board's Notice of Decision informs prisoners that "completion [of recommendations] does not guarantee of a positive outcome." Parole Board's Notice of Decision at 2.
It is undisputed that petitioner was employed as a technical support person for the Casio Corporation in Lansing, Michigan, when he violated his parole by committing new criminal conduct.
Moreover, the language of Michigan's parole statutes does not create a protected liberty interest in parole release, because they do not establish criteria which, when met, mandatorily require parole release. 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 e.g., Thomas v. Morgan, 109 F. Supp.2d 763, 768 (ND. Ohio 2000) (holding petitioner could not challenge parole procedures as violations of due process where decisions of Ohio's parole board were purely discretionary).
Petitioner contends that the Parole Board improperly based its decision on his prior criminal and substance abuse record, failed to adequately consider the positive achievements in 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.
C.
Even if petitioner had established that he was entitled to due process of law in the parole decision-making process, his petition must still be denied; review of the record shows that the Parole Board did not abuse its discretion in denying his 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 is serving a sentence for arson of a dwelling house. Several other arson charges were dismissed in a plea bargain resulting in petitioner's guilty plea and four to twenty year sentence. Petitioner's new criminal conduct committed while on parole involved participating in making and building a large illegal fire. 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 criminal record alone may not accurately predict his future dangerousness, particularly if the crimes are 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 history occurred when he was on parole and that petitioner continued to demonstrate an inability to take responsibility for his criminal behavior and decisions by smiling inappropriately during proceedings and claiming he did not know why he participated in the riot. Further, petitioner's initial crime of arson of a dwelling and his new crime both involved the illegal use of fire placing persons and property at risk. These are appropriate factors for consideration in making the decision whether to revoke parole or whether to grant or deny parole. 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 crime and its similarity to his new crime lacks merit.
II.
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. § 2254 (a). Accordingly, it is ORDERED that the application for the writ of habeas corpus is DENIED and the matter DISMISSED.