Jones #304813 v. Lafler, No. 1:2008cv01052 - Document 4 (W.D. Mich. 2008)
Court Description: OPINION; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION EARNEST SIDNEY JONES, Petitioner, Case No. 1:08-cv-1052 v. Honorable Robert J. Jonker BLAINE LAFLER, Respondent. ____________________________________ OPINION This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to screen out petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim. In addition, the Court will grant Petitioner s motion to file a brief in excess of twenty-five pages. Factual Allegations Petitioner is incarcerated in the Boyer Road Correctional Facility. He was convicted in the Wayne County Circuit Court of second-degree murder. On February 1, 2000, the trial court sentenced Petitioner to imprisonment of seven to forty years. Petitioner s application for habeas corpus relief concerns the denial of his parole by the Michigan Parole Board. The Michigan Parole Board must follow the parole guidelines promulgated by the Michigan Department of Corrections (MDOC). See MICH . COMP. LAWS § 791.233(e)(5). Petitioner scored as having a high probability of parole on his Parole Guideline Score Sheet. The parole board may depart from the guidelines by denying parole to a prisoner who scores under the guidelines as having a high probability of parole, but any such departure shall be for a substantial and compelling reason stated in writing. See MICH . COMP. LAWS § 791.233(e)(6). On June 6, 2008, the Michigan Parole Board issued a Notice of Decision denying Petitioner s parole. In denying Petitioner s, the parole board provided the following substantial and compelling reason: In spite of the completion of recommended assaultive offender therapy, P continues to minimize the extent of his criminal behavior and therefore P is still considered a risk to the general public safety. (6/6/08 Parole Board Notice of Action, Exhibit C, docket #1-4.) Petitioner contends that the mandatory language of MICH . COMP. LAWS § 791.233(e)(6) creates a liberty interest in parole for prisoners who score as having a high probability of parole. He further argues that his continued incarceration is illegal because (a) the petitioner is in custody in violation of the Constitution or Laws of the United States, (b) the parole board s judgment to continue petitioner s confinement for 12 months did not comport to procedural due process, (c) the parole board s decision exceeds the statutory maximum allowed by law, (d) the -2- parole board s decision is not supported by any valid evidence on the record and (e) the State of Michigan s judicial remedies for the deprivation of procedural due process are inadequate. (Pet., 2, docket #1.) Discussion I. Exhaustion of state-court remedies Before the court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Petitioner correctly asserts that he has no available state-court remedy because the State of Michigan has eliminated the right of a prisoner to appeal a parole denial. Under recent statutory and rule amendments by the Michigan Legislature and Michigan Supreme Court, respectively, a prisoner no longer has an ability to appeal a parole denial under state statute. The former version of MICH . COMP. LAWS § 791.234(8) provided that the grant or denial of parole by the Michigan Parole Board could be appealed to the circuit court by the prisoner, prosecutor or victim. See MICH . COMP. LAWS § 791.234(8) (West. 1999). The new version eliminated the ability of a prisoner to appeal a parole denial, and provides only that a grant of release on parole may be appealed by the prosecutor or the victim. See MICH . COMP. LAWS § 791.234(11) (as amended by 1999 Mich. Pub. Acts 191).1 The legislation was approved on November 24, 1999. Following the lead of the Michigan Legislature, the Michigan Supreme Court amended Michigan Court Rule 7.104, effective March 10, 2000, eliminating the provisions regarding the methods by which a prisoner could appeal a parole denial. See MICH . CT . R. 7.104(D)(1), (2)(a). However, certain types of parole denial 1 The Sixth Circuit squarely has upheld the Michigan statute against an equal protection challenge filed by a prisoner. See Jackson v. Jamrog, 411 F.3d 615, 620-21 (6th Cir. 2005). -3- claims involving radical defects in legal process may be cognizable in state habeas corpus proceedings or by complaint for an order of mandamus. See Morales v. Michigan Parole Board, 676 N.W.2d 221, 229-30 (Mich. App. 2003), lv. app. denied 682 N.W.2d 90 (Mich. Ct. 2004). Consequently, because state statute prohibits a prisoner from appealing a parole denial, Petitioner appears to have no available state court remedy in which to exhaust his claims. Even if he did have a method to challenge the decision, such as a state writ of habeas corpus or mandamus, see Morales, 676 N.W.2d at 229-30, the Court could still deny his action on the merits. See 28 U.S.C. § 2254(b)(2). II. Merits Petitioner maintains that the parole board violated his due process rights in denying his parole. To establish a procedural due process violation, a petitioner must prove that (1) he was deprived of a protected liberty or property interest, and (2) such deprivation occurred without the requisite due process of law. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 296 (6th Cir.2006); see also Swihart v. Wilkinson, 209 F. App x 456, 458 (6th Cir. 2006). Plaintiff fails to raise a claim of constitutional magnitude because he has no liberty interest in being released on parole. There is no constitutional or inherent right to be conditionally released before the expiration of a prison sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Although a state may establish a parole system, it has no duty to do so; thus, the presence of a parole system by itself does not give rise to a constitutionally-protected liberty interest in parole release. Id. at 7, 11; Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). Rather, a liberty interest is present only if state law entitles an inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991). -4- In Sweeton v. Brown, 27 F.3d 1162, 1164-165 (6th Cir. 1994) (en banc), the Sixth Circuit, noting the broad powers of the Michigan authorities to deny parole, held that the Michigan system does not create a liberty interest in parole. Subsequent to its 1994 decision, the Sixth Circuit has recognized the continuing validity of Sweeton and has continued to find that Michigan s parole scheme creates no liberty interest in being released on parole. See Ward v. Stegall, 93 F. App x 805, 806 (6th Cir. 2004); Martin v. Ohio Adult Parole Auth., 83 F. App x 114, 155 (6th Cir. 2003); Bullock v. McGinnis, 5 F. App x 340, 342 (6th Cir. 2001); Turnboe v. Stegall, No. 00-1182, 2000 WL 1679478, at *1 (6th Cir. Nov. 1, 2000); Hawkins v. Abramajtys, No. 99-1995, 2000 WL 1434695, at *2 (6th Cir. Sept. 19, 2000); Irvin v. Mich. Parole Bd., No. 99-1817, 2000 WL 800029, at *2 (6th Cir. June 14, 2000); Clifton v. Gach, No. 98-2239, 1999 WL 1253069, at *1 (6th Cir. Dec. 17, 1999). Also, in unpublished decisions, the Sixth Circuit has held that particular parts of Michigan s statutory parole scheme do not create a liberty interest in parole. See Fifer v. Mich. Dep t of Corr., No. 96-2322, 1997 WL 681518, at *1 (6th Cir. Oct. 30, 1997); Moran v. McGinnis, No. 95-1330, 1996 WL 304344, at *2 (6th Cir. June 5, 1996); Leaphart v. Gach, No. 95-1639, 1995 WL 734480, at *2 (6th Cir. Dec. 11, 1995); Vertin v. Gabry, No. 94-2267, 1995 WL 613692, at *1 (6th Cir. Oct. 18, 1995); Neff v. Johnson, No. 92-1818, 1993 WL 11880, at *1 (6th Cir. Jan. 21, 1993); Janiskee v. Mich. Dep t of Corr., No. 91-1103, 1991 WL 76181, at *1 (6th Cir. May 9, 1991); Haynes v. Hudson, No. 89-2006, 1990 WL 41025, at *1 (6th Cir. Apr. 10, 1990). In addition, the Michigan Supreme Court has recognized that there exists no liberty interest in parole under the Michigan system. Glover v. Mich. Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999). Furthermore, the Sixth Circuit has held that the presence of specific parole guidelines does not lead to the conclusion that parole release is mandated upon reaching a high probability of -5- parole. Carnes v. Engler, 76 F. App x 79, 80 (6th Cir. 2003). As stated by the Supreme Court, a state s scheme may be specific or general in defining the factors to be considered by the parole authority without necessarily mandating parole. Greenholtz, 442 U.S. at 7-8. At the time that Sweeton was decided, there were statutory factors to be considered by the parole board. See Sweeton, 27 F.3d at 1165 n.1 (noting that MICH . COMP. LAWS § 791.235 listed a large number of factors to be taken into account by the board ). Although the current parole guidelines may be more detailed than the former statutory provision, they are still nothing more than factors that are considered by the board in assessing whether parole is appropriate. Carnes, 76 F. App x at 80. In the absence of a liberty interest, even an allegation of arbitrary or capricious denial of release on parole states no federal claim. See Haynes, 1990 WL 41025, at *1. The discretionary parole system in Michigan holds out no more than a mere hope that the benefit will be obtained. Greenholtz, 442 U.S. at 11. The Michigan Parole Board s failure or refusal to consider petitioner for parole, therefore, implicates no federal right. In the absence of a liberty interest, Petitioner fails to state a claim for a violation of his procedural due process rights. Moreover, Petitioner s claims that the parole board s decision exceeds the statutory maximum allowed by law is patently false. Under Michigan law, a conviction for second-degree murder may be punishable by imprisonment for life or any term of years to be determined at the discretion of the trial court. See MICH . COMP. LAWS § 750.317. The trial court sentenced Petitioner on February 1, 2000, to imprisonment of seven to forty years. Thus, while Petitioner has served his seven-year minimum term, he has not yet served his 40-year maximum. -6- III. Motion to file brief in excess of twenty-five pages Petitioner filed a motion for leave to file a brief in excess of the twenty-five-pages (docket #3). The brief in support of his application for habeas corpus relief (docket #2) is forty-one pages. Under the local rules of this court, the limit for a brief in support of a dispositive motion in a civil action is twenty-five pages. See W.D. Mich. LCivR 7.2(b). Because a habeas corpus petition is not considered to be a dispositive motion, the page limit set forth in the rules does not apply to his supporting brief. Accordingly, Petitioner s motion will be granted and his brief is accepted as filed. The Court considered Petitioner s supporting brief in deciding this case. Conclusion In light of the foregoing, the Court will summarily dismiss Petitioner s application pursuant to Rule 4 because it fails to raise a meritorious federal claim. In addition, the Court will grant Petitioner s motion to file a brief in excess of twenty-five pages. Certificate of Appealability Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This Court s dismissal of Petitioner s action under Rule 4 of the Rules Governing § 2254 Cases is a determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the Court has already determined that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is somewhat anomalous for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under -7- Rule 4 but granted certificate); Dory v. Commissioner of Correction of the State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was intrinsically contradictory to grant a certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must engage in a reasoned assessment of each claim to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner s claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the certificate, [t]he petitioner must demonstrate that reasonable jurists would find the district court s assessment of the constitutional claims debatable or wrong. Id. A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of Petitioner s claims. Id. The Court finds that reasonable jurists could not conclude that this Court s dismissal of Petitioner s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate of appealability. A Judgment consistent with this Opinion will be entered. Dated: December 2, 2008 /s/ Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE -8-
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