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finding that the prisoner had no liberty interest in his parole after the Michigan Parole Board decided to parole him but later rescinded that decision
Summary of this case from Zavodsky v. BerghuisOpinion
Civil No. 02-CV-73957-DT
July 30, 2003
MEMORANDUM OPINION AND ORDER
I. Introduction
William Harold Hughes ("petitioner"), presently in the custody of the Michigan Department of Corrections at the Parnall Correctional Facility in Jackson, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving two concurrent five year and ten month to fifteen year sentences for second and third degree criminal sexual conduct, M.C.L. 750.520C and 750.520(D). According to respondent, petitioner's criminal offense behavior included forcing his step-children to engage in oral sex with him, anal penetration, forcing one male step child to have sex with his (the child's) mother while petitioner watched, and threatening to harm or kill his stepchildren with a machete if they resisted.
In his application, filed pro se, petitioner attacks the Michigan Parole Board's decision to rescind his parole before releasing him on parole from prison, after setting a parole date of October 12, 1998, resulting in his continued confinement. Petitioner's application does not entitle him to habeas relief and shall be denied with prejudice.
II. Background
According to petitioner, on July 6, 1998, the Michigan Parole Board ("the Board") issued a decision to release him on parole and set his parole release date for October 12, 1998. On July 10, 1998, petitioner received a notice of action from the Board stating that its prior decision was being deferred pending investigation of his parole placement. On February 16, 1999, without holding an additional hearing, the Board decided to deny parole and retroactively gave petitioner a two year "flop," or continuance of his incarceration, dating from July 6, 1998. Petitioner received twelve month continuances of his incarceration on July 15, 1999; July 13, 2000; September 4, 2001; and May 23, 2002.
Petitioner contends that the Board violated his constitutional rights by rescinding his parole without a hearing after having granted him a parole release date. Petitioner sets forth this claim as follows:
The Michigan Parole Board violated Petitioner's constitutionally protected rights, when suspending and then rescinding his parole, violating its own rules, regulations, state statutes, Michigan Constitution of 1963, Art. I, section 17, art. I, section 20, and U.S. Const. Ams V and XIV.
Petitioner also contends that he has no state remedies to exhaust in light of the elimination of prisoners' statutory right to appeal a denial of parole through the amendment of M.C.L. 791.234(9), to allow state court appeals of the Board's decisions in granting or denying parole only by prosecutors and crime victims. Respondent does not contest this claim.
Rather, respondent contends that the petition presents state law claims not cognizable in federal habeas corpus, that his due process claim lacks merit, and that the petition is barred by the statute of limitations.
III. Standard of Review
This Court may only grant habeas relief if the state court's adjudication on the merits resulted in a decision that: 1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding 28 U.S.C. § 2254 (d)(1), (2). A state court's decision must be opposite to that reached by the Supreme Court on a question of law or must face a set of facts that are materially indistinguishable from a relevant Supreme Court precedent and arrive at an opposite result to satisfy the "contrary to" test. See Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The "unreasonable application" test is satisfied when a state court correctly identifies the governing legal principle in a case, but unreasonably applies that principle to the facts of the defendant's case. Id. at 407. This prong is also met when the state court extends improperly or fails to extend a legal principle in the proper new context. Id. When analyzing whether a state court's decision is "contrary to" or an"unreasonable application of" clearly established federal law, this court may only look to United States Supreme Court precedent as of the time of the state court's decision. Id. at 411.
IV. Discussion
Petitioner contends that his constitutional rights have been violated by the Board by its decisions to defer, rescind, and deny his release on parole after initially deciding to release him on parole and setting a parole release date. Petitioner asserts that he has no state remedies to exhaust concerning this claim, because prisoners no longer have the right to appeal decisions of the Michigan Parole Board to deny parole. Respondent does not contest this claim regarding the exhaustion of state court remedies. Furthermore, the habeas statute does not require the exhaustion of meritless claims. 28 U.S.C. § 2254 (b)(2). Controlling United States Supreme Court precedent shows that petitioner is not entitled to habeas relief. Therefore, this Court shall not require petitioner to make attempts to exhaust in state court the claims now before this Court.
Respondent's answer mainly addresses the merits and cognizability of petitioner's, alleging the petition is barred by the statute of limitations without relying upon this defense. Accordingly, this Court shall address the merits of petitioner's claims.
Petitioner has no constitutional right to be released on parole. There is no constitutional right of a lawfully convicted person to be conditionally released before the expiration of a valid sentence. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979); Board of Pardons v. Allen, 482 U.S. 369, 377 n. 8 (1987). Stated more briefly, 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).
In Michigan, a prisoner's release on parole is discretionary with the parole board. In Re Parole of Johnson, 235 Mich. App. 21 (1999) ( per curiam) (citing Mich. Comp. Laws § 791.234(6)(d) and 791.234(7). See also, M.C.L. § 791.234(9). The Michigan parole statute therefore does not create a right to be paroled. Hurst v. Department of Corrections Parole Board, 119 Mich. App. 25, 29 (1982). Because the Michigan Parole Board has essentially unfettered 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 v. Nebraska Penal Inmates, 442 U.S. at 11).
In Michigan, a prisoner's release on parole is discretionary with the parole board. 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, 1052 (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 Board of Parole, 511 F.2d 1270, 1278 (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 maintains that, because a decision to grant parole was made and a projected parole release date was set, he was entitled to the due process protections of a parolee who was accused of violating his parole and subjected to the parole revocation process. That is, petitioner contends that he was entitled to the due process protections applicable to parole revocation cases. While petitioner's argument has some logical force, the United States Supreme Court has rejected it.
In Jago v. Van Curen, 454 U.S. 14, 14-18 (1981), the Ohio Adult Parole Authority ("OAPA") had ordered a prisoner's release on parole on a date certain, the prisoner attended and completed prison prerelease classes, and was measured for civilian clothes. Shortly thereafter, before the prisoner was released from prison on parole, the OAPA learned of new information regarding the prisoner's expected post-release living circumstances and rescinded its earlier release decision on the basis of this new information. The Supreme Court held that, because the prisoner had not been physically released from prison, and Ohio law allowed for the suspension or rescission of a projected parole release at any time before the prisoner was actually physically released, the prisoner did not have a protected liberty interest in release sufficient to invoke the procedural protections of the Due Process Clause, despite the undoubted "grievous loss," he suffered when his release date was rescinded. Id. at 17.
As stated by the United States Court of Appeals for the Ninth Circuit, "the United States Constitution does not, of its own force, create a protected liberty interest in a parole date." Perveler v. Estelle, 974 F.2d 1132, 1134 (9th Cir. 1992). Even when a parole board adopts a specific parole date, the understanding between Board and prisoner does not create a protected liberty interest; until a prisoner has actually been released, parole may still be rescinded without implicating constitutional rights. Jago v. Van Curen, 454 U.S. at 14-18. In the absence of state-created interests at other stages of the parole process, only parole revocation decisions require constitutional protections. See, Morrissey v. Brewer, 408 U.S. 471 (1972).
Although "state statutes may create liberty interests in parole release decisions that are entitled to protection under the Due Process Clause," Board of Pardons v. Allen, 482 U.S. at 371, Michigan law creates no such interests. In Re Parole of Johnson, 235 Mich. App. 21 (citing Mich. Camp. Laws § 791.234(6)(d) and 791.234(7). See also, M.C.L. § 791.234(9); Hurst v. Department of Corrections Parole Board, 119 Mich. App. at 29. Because the Michigan Parole Board has essentially unfettered 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. at 1171. Furthermore, nothing in Michigan statutes or regulations limits the Board's discretion during the period between selection or announcement of a parole date and an inmate's actual release on parole.
Of course, parole may not be denied or rescinded for an unconstitutional reason such as the prisoner's race, sex, religion, alienage, or a prior assertion of a constitutional right. In the present case, however, petitioner makes no such allegation.
According to respondent, the Board decided to defer and rescind petitioner's parole release because his offense involved the victimization of children, he was designated a sexual predator, he showed no empathy for his victims and no insight into his deviancy, and his projected parole placement was rejected because of the presence of children in the home. Under the circumstances of this case, this Court does not find that the Board's actions were arbitrary or capricious or otherwise constitutionally infirm.
The United States Supreme Court has explained the distinction between parole denial and parole revocation by noting that the latter deprives an individual of liberty he has as opposed to liberty he only desires. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. at 9. A constitutionally significant change of status occurs only after the prisoner has experienced rather than merely expected the liberty of actual release on parole from physical custody.
Petitioner has not shown and does not allege that the Michigan Parole Board lacks the authority to suspend or rescind a projected parole release date at its own discretion. Therefore, following Jago v. Van Curen, this Court concludes that petitioner had no liberty interest in parole release protected by the Due Process Clause, despite the Parole Board having set a date certain projected release for him.
For all of the above stated reasons, this Court concludes that petitioner's claim that he was improperly denied parole release lacks merit. Petitioner's continued incarceration after the Parole Board suspended his projected release date was not in violation of federal constitutional law. In this case, there appears to be no state court decision to evaluate under § 2254(d). Where the state court has not articulated its reasoning, federal courts are obligated to conduct an independent review of the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented. See Aycox v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir. 1999) ("we must uphold the state court's summary decision unless our independent review of the record and pertinent federal law persuades us that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented"); Schaff v. Snyder, 190 F.3d 513, 523 (7th Cir. 1999). That independent review, however, is not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA. Harris v. Stovall, 212 F.3d 940, 943-45 (6th Cir. 2000). In this case, independent review of his claims shows that the denial of his initial projected parole release was not contrary to or an unreasonable application of United States Supreme Court precedent and was not inimical to the AEDPA.
Petitioner also contends that his federal constitutional rights have been violated entitling him to habeas relief because the Board failed to follow procedures mandated by state statutes, rules, regulations, and the Michigan state constitution. Petitioner is mistaken. Assuming for the sake of argument that the Board failed to follow procedures mandated by state law as petitioner alleges, such violations of state law would not entitle him to habeas corpus relief. Federal habeas relief is not available for correction of state law errors. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)). See also, Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) and Floyd v. Alexander, 148 F.3d 615, 619 (6th Cir.) (concluding that violation of state law is not cognizable in federal habeas corpus proceedings), cert. denied, 525 U.S. 1025, 119 S.Ct. 557, 142 L.Ed.2d 464 (1998). A violation of state law is only cognizable in federal habeas corpus where the error rises to the level of a denial of fundamental fairness. Matlock v. Rose, 731 F.2d 1236, 1242 (6th Cir. 1984). This Court concludes that petitioner's parole deferral and rescission and denial decisions were made on the basis of independent factual investigation and the exercise of reasonable discretion by the Board. Therefore, these decisions did not deny petitioner fundamental fairness.
Therefore, for the reasons stated above, this Court concludes that petitioner is not entitled to habeas relief and the petition shall be denied. Accordingly, the petition shall be denied and the matter dismissed with prejudice.
IV. CONCLUSION
In summary, federal habeas corpus relief is not warranted under any theory advanced by petitioner. Accordingly, for the reasons stated above, the Court DENIES the petition and DISMISSES WITH PREJUDICE the petition for writ of habeas corpus.