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Oswald v. Julian

United States District Court, W.D. Michigan, Southern Division
Nov 17, 2005
Case No. 1:04 CV 830 (W.D. Mich. Nov. 17, 2005)

Opinion

Case No. 1:04 CV 830.

November 17, 2005


REPORT AND RECOMMENDATION


This matter is before the Court on Defendants David Kleinhardt's and John S. Rubitschun's Rule 12(b)(6) Motion for Dismissal. (Dkt. #24). Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court recommends that Defendants' motion be granted and Plaintiff's action dismissed.

BACKGROUND

On December 15, 1988, Plaintiff was convicted of extortion, in violation of Mich. Comp. Laws § 750.213, for acts committed on July 10, 1984. (Dkt. #1, Exhibit A). Plaintiff was also convicted of being a fourth felony offender, in violation of Mich. Comp. Laws § 769.12. Plaintiff was sentenced to an indeterminate sentence of 40-60 years in prison. Id.

In his complaint, Plaintiff alleges that on May 24, 2004, Defendant Rubitschun denied his request for a parole interview and advised him that he was not entitled to an interview until approximately August 24, 2024. Plaintiff claims that, pursuant to Michigan law in effect as of the date he was sentenced, he is entitled to a parole interview after serving ten years of his sentence and to additional interviews every five years thereafter. According to Plaintiff, Defendant Rubitschun improperly applied the then current version of Mich. Comp. Laws § 791.234 rather than applying the statute in effect as of the date he was sentenced.

Plaintiff sought reconsideration of Defendant Rubitschun's determination. In a letter dated July 19, 2004, Defendant Kleinhardt advised Plaintiff that the law presently in effect applied to his request for a parole hearing. Defendant Kleinhardt acknowledged that under previous law prisoners subject to long indeterminate sentences were interviewed by the parole board after ten years of confinement and each five years thereafter. Defendant Kleinhardt further asserted, however, that even under the law previously in effect, prisoners subject to indeterminate sentences (such as Plaintiff) were not entitled to parole until they had served their minimum sentences. Thus, regardless whether Plaintiff was interviewed he was not entitled to parole until he had served his minimum sentence. Accordingly, Defendant Kleinhardt rejected Plaintiff's request for reconsideration and advised him that he was not entitled to a parole interview until approximately August 24, 2024.

On December 9, 2004, Plaintiff initiated the present action alleging that Defendants are not applying Michigan parole law as it existed as of the date of his sentence, but are instead applying Michigan parole law as subsequently modified. Plaintiff claims that such violates his rights under the Ex Post Facto Clause of the United States Constitution. Plaintiff seeks declaratory and injunctive relief, specifically regular interviews with the parole board in accordance with the law in effect as of the date he was sentenced.

On May 3, 2005, the Court issued an Opinion directing that Plaintiff's complaint be served on Defendants Rubitschun and Kleinhardt, but that Plaintiff's claims against the various other Defendants be dismissed for failure to state a claim on which relief may be granted. (Dkt. #8-9).

STANDARD

When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all Plaintiff's allegations and construe the complaint liberally in his favor. See Herron v. Harrison, 203 F.3d 410, 414 (6th Cir. 2000). Furthermore, complaints filed by pro se plaintiffs are held to an "especially liberal standard, and should only be dismissed for failure to state a claim if it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

ANALYSIS

Article I, § 10, of the United States Constitution prohibits the States from enacting any "ex post facto Law." This clause proscribes laws which "retroactively alter the definition of crimes or increase the punishment for criminal acts." Collins v. Youngblood, 497 U.S. 37, 43 (1990). The legislative changes which form the basis of Plaintiff's claim do not modify the definition of the crime he committed. The question, therefore, becomes whether changes to the laws governing parole — retroactively applied — are susceptible of violating the ex post facto clause.

The United States Supreme Court addressed this question in California Department of Corrections v. Morales, 514 U.S. 499 (1995). Morales was convicted of murder in 1980, his second such conviction. Id. at 502. In 1989, Morales was interviewed by the parole board to determine his suitability for parole. Id. at 502-03. Morales was found unsuitable for parole. Id. at 503.

Pursuant to the law in effect as of the date he committed his offense, Morales would have been entitled to annual parole suitability hearings. In 1981, however, California modified its parole laws to permit the parole board to defer subsequent suitability hearings for up to three years if the prisoner had been convicted of "more than one offense which involves the taking of a life" and if the board "finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the basis for the finding."

Determining that it was not reasonable to expect that Morales would be found suitable for parole in 1990 or 1991, the parole board scheduled Morales' next parole board hearing for 1992. Id. Morales challenged this action on the ground that the ex post facto clause of the United States Constitution prohibited the parole board from applying the 1981 amendments to California's parole laws to him. Id. at 504. The District Court denied Morales' petition, but the Ninth Circuit Court of Appeals reversed this conclusion, holding that the parole board "was constitutionally constrained to provide [Morales] with annual parole suitability hearings, as required by the law in effect when he committed his crime." Id. The Supreme Court reversed this decision.

The Court rejected Morales' contention that "the Ex Post Facto Clause forbids any legislative change that has any conceivable risk of affecting a prisoner's punishment." Id. at 508. The Court noted that "contrary to the approach advocated by respondent, we have long held that the question of what legislative adjustments `will be held to be of sufficient moment to transgress the constitutional prohibition' must be a matter of `degree.'" Id. at 509. Accordingly, the Court concluded that in evaluating Morales' claim it must determine whether the application (to Morales) of the 1981 amendments to California's parole laws "produces a sufficient risk of increasing the measure of punishment attached to the covered crimes." Id.

Finding that "the California legislation at issue creates only the most speculative and attenuated risk of increasing the measure of punishment attached to the covered crimes," the Court concluded that the application as to Morales of the 1981 amendments to California's parole laws did not violate the ex post facto clause of the United States Constitution. Id. at 514.

In Garner v. Jones, 529 U.S. 244 (2000), the Court revisited the issue of whether retroactive amendments to a state's laws governing parole violate the ex post facto clause. In finding that the retroactive application of modifications in Georgia's parole laws did not violate Jones' rights under the ex post facto clause, the Court reiterated its previous holding in Morales that "[t]he controlling inquiry" is "whether retroactive application of the changes in [state] law created `a sufficient risk of increasing the measure of punishment attached to the covered crimes.'" Id. at 249-57.

The Sixth Circuit Court of Appeals has consistently recognized that this is the standard applicable to claims such as that presently before the Court. See Fraser v. Tennessee Board of Paroles, 2000 WL 1800634 (6th Cir., Nov. 30, 2000); Seagroves v. Tennessee Board of Probation and Parole, 86 Fed.Appx. 45 (6th Cir., Dec. 8, 2003); Shabazz v. Gabry, 123 F.3d 909 (6th Cir. 1997).

Plaintiff's claim focuses on Mich. Comp. Laws § 791.234(4). As of the date Petitioner committed his offense, this section provided as follows:

(4) A prisoner under sentence for life or for a term of years, other than prisoners sentenced for life for murder in the first degree and prisoners sentenced for life or for a minimum term of imprisonment for a major controlled substance offense, who has served 10 calendar years of the sentence is subject to the jurisdiction of the parole board and may be released on parole by the parole board, subject to the following conditions:
(a) One member of the parole board shall interview the prisoner at the conclusion of 4 calendar years of the sentence and biennially thereafter until such time as the prisoner is paroled, discharged, or deceased.
(b) A parole shall not be granted a prisoner so sentenced until after a public hearing held in the manner prescribed for pardons and commutations in sections 44(d) to 44(f) and 45. Notice of the public hearing shall be given to the sentencing judge, or the judge's successor in office, and parole shall not be granted if the sentencing judge, or the judge's successor in office, files written objections to the granting of parole within 30 days of receipt of the notice of hearing. The written objections shall be made part of the prisoner's file.
(c) A parole granted under this subsection shall be for a period of not less than 4 years and subject to the usual rules pertaining to paroles granted by the parole board. A parole ordered under this subsection shall not become valid until the transcript of the record is filed with the attorney general whose certification of receipt of the transcript shall be returnable to the office of the parole board within 5 days. Except for medical records protected by section 2157 of Act No. 236 of the Public Acts of 1961, being section 600.2157 of the Michigan Compiled Laws, the file of a prisoner granted a parole under this subsection shall be a public record.
(d) A parole shall not be granted under this subsection in the case of a prisoner who is otherwise prohibited by law from parole consideration. In such cases the interview procedures in section 44 shall be followed.

In 1992, section 791.234(4) was modified to provide as follows:

(4) A prisoner under sentence for life or for a term of years, other than a prisoner sentenced for life for murder in the first degree or sentenced for life or for a minimum term of imprisonment for a major controlled substance offense, who has served 10 calendar years of the sentence in the case of a prisoner sentenced for a crime committed before October 1, 1992, or who has served 15 calendar years of the sentence in the case of a prisoner sentenced for a crime committed on or after October 1, 1992, is subject to the jurisdiction of the parole board and may be released on parole by the parole board, subject to the following conditions:
(a) One member of the parole board shall interview the prisoner at the conclusion of 10 calendar years of the sentence and every 5 years thereafter until such time as the prisoner is paroled, discharged, or deceased. The interview schedule prescribed in this subdivision applies to all prisoners to whom this subsection is applicable, whether sentenced before, on, or after the effective date of the 1992 amendatory act that amended this subdivision.
(b) A parole shall not be granted a prisoner so sentenced until after a public hearing held in the manner prescribed for pardons and commutations in sections 44(d) to (f) and 45. Notice of the public hearing shall be given to the sentencing judge, or the judge's successor in office, and parole shall not be granted if the sentencing judge, or the judge's successor in office, files written objections to the granting of parole within 30 days of receipt of the notice of hearing. The written objections shall be made part of the prisoner's file.
(c) A parole granted under this subsection shall be for a period of not less than 4 years and subject to the usual rules pertaining to paroles granted by the parole board. A parole ordered under this subsection shall not become valid until the transcript of the record is filed with the attorney general whose certification of receipt of the transcript shall be returnable to the office of the parole board within 5 days. Except for medical records protected by section 2157 of the revised judicature act of 1961, Act No. 236 of the Public Acts of 1961, being section 600.2157 of the Michigan Compiled Laws, the file of a prisoner granted a parole under this subsection shall be a public record.
(d) A parole shall not be granted under this subsection in the case of a prisoner who is otherwise prohibited by law from parole consideration. In such cases the interview procedures in section 44 shall be followed.

As evidenced by the modifications in 791.234(4)(a), the law was changed such that certain prisoners, instead of being entitled to a parole board interview after serving four years of their sentence (and every two years thereafter), were not entitled to a parole board hearing until after serving ten years of their sentence (and every five years thereafter). This provision, now codified at Mich. Comp. Laws § 791.234(6), underwent further modifications in 1998, 1999, 2002, and 2004. This provision now provides as follows:

(6) A prisoner under sentence for life, other than a prisoner sentenced for life for murder in the first degree or sentenced for life for a violation of section 16(5) or 18(7) or chapter XXXIII of the Michigan penal code, 1931 PA 328, MCL 750.16, 750.18, and 750.200 to 750.212a, or section 17764(7) of the public health code, 1978 PA 368, MCL 333.17764, who has served 10 calendar years of the sentence in the case of a prisoner sentenced for a crime committed before October 1, 1992, or, except as provided in subsection (10), who has served 20 calendar years of the sentence in the case of a prisoner sentenced to imprisonment for life for violating or conspiring to violate section 7401(2)(a)(i) of the public health code, 1978 PA 368, MCL 333.7401, who has another conviction for a serious crime, or, except as provided in subsection (10), who has served 17½ calendar years of the sentence in the case of a prisoner sentenced to imprisonment for life for violating or conspiring to violate section 7401(2)(a)(i) of the public health code, 1978 PA 368, MCL 333.7401, who does not have another conviction for a serious crime, or who has served 15 calendar years of the sentence in the case of a prisoner sentenced for a crime committed on or after October 1, 1992, is subject to the jurisdiction of the parole board and may be released on parole by the parole board, subject to the following conditions:
(a) At the conclusion of 10 calendar years of the prisoner's sentence and thereafter as determined by the parole board until the prisoner is paroled, discharged, or deceased, and in accordance with the procedures described in subsection (7), 1 member of the parole board shall interview the prisoner. The interview schedule prescribed in this subdivision applies to all prisoners to whom this subsection is applicable, regardless of the date on which they were sentenced.
(b) In addition to the interview schedule prescribed in subdivision (a), the parole board shall review the prisoner's file at the conclusion of 15 calendar years of the prisoner's sentence and every 5 years thereafter until the prisoner is paroled, discharged, or deceased. A prisoner whose file is to be reviewed under this subdivision shall be notified of the upcoming file review at least 30 days before the file review takes place and shall be allowed to submit written statements or documentary evidence for the parole board's consideration in conducting the file review.
(c) A decision to grant or deny parole to a prisoner so sentenced shall not be made until after a public hearing held in the manner prescribed for pardons and commutations in sections 44 and 45. Notice of the public hearing shall be given to the sentencing judge, or the judge's successor in office, and parole shall not be granted if the sentencing judge, or the judge's successor in office, files written objections to the granting of the parole within 30 days of receipt of the notice of hearing. The written objections shall be made part of the prisoner's file.
(d) A parole granted under this subsection shall be for a period of not less than 4 years and subject to the usual rules pertaining to paroles granted by the parole board. A parole ordered under this subsection is not valid until the transcript of the record is filed with the attorney general whose certification of receipt of the transcript shall be returnable to the office of the parole board within 5 days. Except for medical records protected under section 2157 of the revised judicature act of 1961, 1961 PA 236, MCL 600.2157, the file of a prisoner granted a parole under this subsection is a public record.
(e) A parole shall not be granted under this subsection in the case of a prisoner who is otherwise prohibited by law from parole consideration. In such cases the interview procedures in section 44 shall be followed.

The specific changes to this provision enacted in 1998, 1999, and 2002, are not relevant to the resolution of Plaintiff's claim. To the extent that substantive changes were made subsequent to 1992, such are reflected in the current version of this provision. Moreover, as discussed below, Plaintiff was at no time relevant to this matter subject to the provisions of Mich. Comp. Laws §§ 791.234(4) or 791.234(6).

In support of his claim, Plaintiff relies on the provisions quoted above. However, an examination of other relevant provisions is also necessary to properly assess whether the retroactive application of the provisions quoted above "produces a sufficient risk of increasing the measure of punishment attached to the covered crimes."

As noted above, Plaintiff was convicted of extortion, in violation of Mich. Comp. Laws § 750.213. As of the date Plaintiff committed this offense, Michigan parole law provided as follows:

A person convicted and sentenced for the commission of any of the following crimes shall not be eligible for parole until the person has served the minimum term imposed by the court less an allowance for disciplinary credits as provided in section 33(5) of Act No. 118 of the Public Acts of 1893, being section 800.33 of the Michigan Compiled Laws, but shall not be eligible for special parole:
(l) Section 204, 205, 206, 207, 208, 209, or 213 of Act No. 328 of the Public Acts of 1931, as amended, being section 750.204, 750.205, 750.206, 750.207, 750.208, 750.209, or 750.213 of the Michigan Compiled Laws.

The substance of this provision has remained unchanged since the date Plaintiff committed his crime.

Mich. Comp. Laws § 791.233b.

As also noted above, Plaintiff was sentenced as a fourth habitual offender in violation of Mich. Comp. Laws § 769.12. As of the date Plaintiff committed his most recent offense (i.e. his fourth felony), section 769.12 provided in pertinent part as follows:

(2) If the court pursuant to this section imposes a sentence of imprisonment for any term of years, the court shall fix the length of both the minimum and maximum sentence within any specified limits in terms of years or fraction thereof, and the sentence so imposed shall be considered an indeterminate sentence.

The substance of this particular subsection has remained unchanged since the date Plaintiff committed his crime.

As noted above, Plaintiff was sentenced to serve 40-60 years in prison which as this provision explains is considered an indeterminate sentence. With respect to prisoners subject to indeterminate sentences, Michigan parole law, as of the date Plaintiff committed his fourth felony, provided as follows:

(1) A prisoner sentenced to an indeterminate sentence and confined in a state prison or reformatory with a minimum in terms of years shall be subject to the jurisdiction of the parole board when the prisoner has served a period of time equal to the minimum sentence imposed by the court for the crime of which he or she was convicted, less good time allowances, if applicable.

Mich. Comp. Laws § 791.234(1).

The substance of this provision has remained unchanged since the date Plaintiff committed his crime.

Pursuant to the law in effect as of the date Plaintiff committed his fourth felony (i.e., Mich. Comp. Laws § 791.234(1) and Mich. Comp. Laws § 791.233b(2)), law which has remained continuously in effect to the present, Plaintiff is not eligible for parole until he has served 40 years in prison, less any applicable good time credits. According to the material submitted by Plaintiff he has been detained in this matter since his August 25, 1984 arrest. Thus, subject to any applicable good time credits, Plaintiff is not eligible for parole until August 2024. Plaintiff has presented no evidence that he has earned any good time credits.

The changes enacted to Mich. Comp. Laws § 791.234(4) subsequent to the commission of Plaintiff's fourth felony simply modify the frequency with which the parole board is required to conduct parole suitability hearings with certain prisoners. While such modifications may adversely impact certain prisoners, it cannot be said that such changes created "a sufficient risk of increasing the measure of punishment attached to [Plaintiff's] crimes" because pursuant to the law in effect as of the date Plaintiff committed his fourth felony (and continuously in effect to the present) Plaintiff was never eligible for parole until he served 40 years in prison. Plaintiff has served only 21 years of his sentence thus far. The Court concludes, therefore, that the statutory changes about which Plaintiff complains do not violate his rights under the ex post facto clause.

CONCLUSION

For the reasons articulated herein, the Court recommends thatDefendants David Kleinhardt's and John S. Rubitschun's Rule 12(b)(6) Motion for Dismissal, (dkt. #24), be granted and Plaintiff's action dismissed.

OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time waives the right to appeal the District Court's order. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).


Summaries of

Oswald v. Julian

United States District Court, W.D. Michigan, Southern Division
Nov 17, 2005
Case No. 1:04 CV 830 (W.D. Mich. Nov. 17, 2005)
Case details for

Oswald v. Julian

Case Details

Full title:ROBERT LEO OSWALD, Plaintiff, v. LARRY JULIAN, et al., Defendants

Court:United States District Court, W.D. Michigan, Southern Division

Date published: Nov 17, 2005

Citations

Case No. 1:04 CV 830 (W.D. Mich. Nov. 17, 2005)