Opinion
Civil Action No. 03-CV-74287-DT
October 31, 2003
OPINION AND ORDER OF SUMMARY DISMISSAL
Eric Allen Zola, ("petitioner"), presently confined at the Ryan Correctional Facility in Detroit, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he has seeks to challenge his sentence for one count of conspiracy to commit first-degree home invasion, M.C.L.A. 750.157(a); M.S.A. 28.354(1); M.C.L.A. 750.110 a(2); M.S.A. 28.305(a)(2); and one count of receiving and concealing over one thousand but less than twenty thousand dollars of stolen property, M.C.L.A. 750.535(3)(a); M.S.A. 28.803(3)(a). For the reasons stated below, the petition for writ of habeas corpus is SUMMARILY DISMISSED. The Court will also deny petitioner a certificate of appealability and leave to appeal in forma pauperis.
I. Background
Petitioner pleaded guilty to both offenses in the Monroe County Circuit Court and was sentenced to thirteen years, four months to twenty years on the conspiracy to commit first-degree home invasion conviction and received a sentence of three years, four months to five years on the receiving and concealing stolen property charge. Petitioner's conviction was affirmed on appeal by the Michigan appellate courts. Petitioner has now filed an application for writ of habeas corpus. For purposes of judicial clarity, the Court will paraphrase petitioner's claim, rather than recite it verbatim:
Plaintiff did not indicate in his petition the sentence that he received for the receiving and concealing stolen property conviction. However, the Michigan Department of Corrections' Offender Tracking Information System (OTIS), which this Court is permitted to take judicial notice of, See Dennis v. Burke, 2003 WL 345369, * 1, fn. 1 (E.D. Mich. January 30, 2003), indicates that plaintiff was sentenced to three years, four months to five years on this offense.
Petitioner requests this Court to make a recommendation to the "Sentencing Commission" that petitioner be placed in the "Alternative Sentencing Release Program."
II. Discussion
A petition for a writ of habeas corpus must set forth facts that give rise to a cause of action under federal law or it may summarily be dismissed. Perez v. Hemingway, 157 F. Supp.2d 790, 796 (E.D. Mich. 2001). Federal courts are also authorized to dismiss any habeas petition that appears legally insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856 (1994). A federal district court is authorized to summarily dismiss a habeas corpus petition if it plainly appears from the face of the petition or the exhibits that are attached to it that the petitioner is not entitled to federal habeas relief. See Suaza v. Department of Justice, 14 Fed. Appx. 318, 319 (6th Cir. 2001); Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. No return to a habeas petition is necessary when the petition is frivolous, or obviously lacks merit, or where the necessary facts can be determined from the petition itself without consideration of a return by the state. Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970). Conclusory allegations in a habeas petition, without evidentiary support, do not provide a basis for habeas relief. Payne v. Smith, 207 F. Supp.2d 627, 650 (E.D. Mich. 2002).As an initial matter, petitioner's sentence of thirteen years, four months to twenty years was within the statutory maximum set under Michigan's statutes for conspiracy to commit first-degree home invasion, and his sentence of three years, four months to five years was within the statutory limit for the offense or receiving and concealing stolen property. A sentence imposed within the statutory limits is not generally subject to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp.2d 788, 797 (E.D. Mich. 1999). A sentence within the statutory maximum set by statute does not normally constitute cruel and unusual punishment. Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000). Generally, federal habeas review of a state court sentence ends once the court makes a determination that the sentence is within the limitation set by statute. Allen v. Stovall, 156 F. Supp.2d 791, 795 (E.D. Mich. 2001). Claims which arise out of a state trial court's sentencing decision are not normally cognizable on federal habeas review, unless the habeas petitioner can show that the sentence imposed exceeded the statutory limits or is wholly unauthorized by law. Lucey v. Lavigne, 185 F. Supp.2d 741, 745 (E.D. Mich. 2001) (citing to Haynes v. Butler, 825 F.2d 921, 923 (5th Cir. 1987)). A claim that a sentence is imposed in violation of Michigan's sentencing law does not state a claim for relief in a habeas proceeding where there is no claim that the sentence violates the cruel and unusual punishment clause of the Eighth Amendment. Hanks v. Jackson, 123 F. Supp.2d 1061, 1075 (E.D. Mich. 2000).
In the present case, petitioner does not allege that his sentence was cruel and unusual under the Eighth Amendment, but merely requests this Court to recommend to "the Sentencing Commission" that he be placed in the "Alternative Sentencing Release Program." As an initial matter, petitioner does not identify who the "Sentencing Commission" is or what the "alternative Sentencing Release Program" is, nor does he allege whether the state trial court erred in failing to consider sentencing petitioner to this program in lieu of incarceration or whether the Michigan Parole Board violated his constitutional rights in failing to consider him for early release. Petitioner's application for habeas relief to obtain his early release to this alternative sentencing program is subject to dismissal because it is conclusory and unsupported. See e.g. Camper v. Benov, 966 F. Supp. 951, 954, n. 6 (C.D. Cal. 1997) (habeas petitioner's claim that the Bureau of Prison's exclusion of eligibility for his early release based on his prior state conviction violated due process was conclusory and without merit, where petitioner did not elaborate on this point). In any event, this Court notes that a prisoner does not have a constitutional right to be incarcerated in any particular institution. Ward v. Dyke, 58 F.3d 271, 274 (6th Cir. 1995)( citing to Meachum v. Fano, 427 U.S. 215 (1976)). There is also no constitutional right of a 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); See also Board of Pardons v. Allen, 482 U.S. 369, 377, fn. 8 (1987). Stated more succinctly, there is no federal constitutional right to be paroled. Lee v. Withrow, 76 F. Supp.2d 789, 792 (E.D. Mich. 1999). The denial of parole and the continued incarceration of a prisoner does not therefore constitute a violation of the cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution. Lee, 76 F. Supp.2d at 792. Therefore, requiring a prisoner to serve even his maximum sentence works no constitutional violation upon an inmate. Id. Finally, the State of Michigan's refusal to reduce petitioner's minimum sentence term by placing him in an alternative sentencing program is noncognizable on federal habeas review, where petitioner does not allege that he was denied due process during the initial imposition of sentence. See McQueary v. Blodgett, 924 F.2d 929, 933 (9th Cir. 1991). Finally, because petitioner had no constitutional right to an individualized sentence, no constitutional error would occur if the state trial court failed to consider mitigating evidence on his behalf at sentencing in determining whether to sentence petitioner to a term of incarceration or to an alternative sentencing program. Hastings v. Yukins, 194 F. Supp.2d 659, 673 (E.D. Mich. 2002).
III. Conclusion
The Court will deny the petition for writ of habeas corpus. The Court will also deny a certificate of appealability to petitioner. In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-484 (2000). When a district court rejects a habeas petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Id. at 484. The Sixth Circuit has indicated that a federal district court may grant or deny a certificate of appealability when the court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002). A district court therefore has the power to deny a certificate of appealability sua sponte. See Dell v. Straub, 194 F. Supp.2d 629, 658 (E.D. Mich. 2002).
For the reasons stated in this opinion, the Court will deny petitioner a certificate of appealability because he has failed to make a substantial showing of the denial of a federal constitutional right. Dell, 194 F. Supp.2d at 659. The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Id.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma pauperis.