-ESC Whack #157689 v. Michigan Parole Board Commission, No. 1:2011cv00548 - Document 8 (W.D. Mich. 2011)
Court Description: OPINION; Judgment and Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION MICHAEL WHACK, Petitioner, Case No. 1:11-cv-548 v. Honorable Janet T. Neff MICHIGAN PAROLE BOARD COMMISSION, 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 Defendant Michigan Parole Board is immune from suit and because the petition fails to raise a meritorious federal claim. Factual Allegations Petitioner Michael Whack presently is incarcerated at the Parnall Correctional Facility in Jackson, Michigan.1 Petitioner was found guilty in the Wayne County Circuit Court of two counts of criminal sexual conduct in the first degree, in violation of MICH. COMP. LAWS § 750.520B. He was sentenced on November 22, 1988, to two terms of twenty-five to fifty years. Petitioner brings this habeas petition against the Michigan Parole Board Commission, by which the Court assumes he intends to name the Michigan Parole Board. Petitioner alleges that he was interviewed by the Michigan Parole Board on February 18, 2010. Petitioner received a twelve-month continuance until his next consideration for parole. Petitioner alleges that he was assessed under the parole guidelines as having a high probability of parole. Petitioner was again interviewed in January 2011, with a continuance until June of 2012 until his next consideration for parole. Petitioner alleges that, at that time, he was assessed under the parole guidelines as having an average probability of parole. He alleges that the parole board did not provide substantial and compelling reasons for deviating from the parole guidelines, as required by MICH. COMP. LAWS § 791.233e(6). Petitioner alleges that the decisions were in violation of Michigan law. He also alleges that MICH. COMP. LAWS § 791.233e was adopted and the administrative rules governing parole proceedings, MICH. ADMIN. CODE r. 791.7701-791.7710, were amended in violation of MICH. COMP. LAWS § 24.207(k) and the Michigan Constitution. Petitioner therefore contends that he was subjected to null and void provisions, in violation of his rights under the Due Process Clause of the federal constitution and state law. 1 At the time of the filing of his habeas petition, Petitioner was incarcerated at the Pugsley Correctional Facility in Kingsley, Michigan. -2- Discussion I. Sovereign Immunity Plaintiff has named the Michigan Parole Board as the sole Defendant, not any one or more of the individual members of the board. The Michigan Parole Board is part of the Michigan Department of Corrections. MICH. COMP. LAWS § 791.231a(1). Regardless of the form of relief requested, the states and their departments are immune under the Eleventh Amendment from suit in the federal courts, unless the state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); O Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1994). Congress has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). Therefore, the Michigan Parole Board, as part of the Michigan Department of Corrections, is immune from injunctive and monetary relief. See Horton v. Martin, 137 F. App x 773, 775 (6th Cir. 2005) (Michigan Parole Board entitled to Eleventh Amendment immunity); Lee v. Mich. Parole Bd., 104 F. App x 490, 492 (6th Cir. 2004) (same); Fleming v. Martin, 24 F. App x 258, 259 (6th Cir. 2001) (same). II. Due Process Even had Petitioner named a proper party defendant in the action, he fails to set forth a meritorious federal claim. To establish a procedural due process violation, a plaintiff 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 -3- 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). 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 Foster v. Booker, 595 F.3d 353, 368 (6th Cir. 2010); Ward v. Stegall, No. 03-1804, 2004 WL 614581, at *1 (6th Cir. Mar. 24, 2004); Martin v. Ohio Adult Parole Auth., No. 03-3642, 2003 WL 22946604, at *1 (6th Cir. Dec. 8, 2003); Bullock v. McGinnis, No. 00-1591, 2001 WL 180978, at *2 (6th Cir. Feb. 14, 2001); Turnboe v. Stegall, No. 00-1182, 2000 WL 1679478, at *1 (6th Cir. Nov. 1, 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, -4- 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 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. Until Plaintiff has served his maximum sentence, he has no reasonable expectation of liberty. 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 Plaintiff for -5- parole, therefore, implicates no federal right. In the absence of a liberty interest, Plaintiff fails to state a claim for a violation of his procedural due process rights. III. State Law Plaintiff next claims that MICH. COMP. LAWS § 791.233e and MICH. ADMIN. CODE r. 791.7701-791.7710 were adopted or amended in violation of MICH. COMP. LAWS § 24.207(k) and the Michigan Constitution. The court may entertain an application for habeas relief on behalf of a person in custody pursuant to the judgment of a State court in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A habeas petition must state facts that point to a real possibility of constitutional error. Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory Committee Notes on Rule 4, RULES GOVERNING HABEAS CORPUS CASES). The federal courts have no power to intervene on the basis of a perceived error of state law. Wilson v. Corcoran, 131 S. Ct. 13, 14 (2010); Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Pulley v. Harris, 465 U.S. 37, 41 (1984). As the Supreme Court long ago explained, whether the statutes of a legislature of a state have been duly enacted in accordance with the requirements of the constitution of such state is not a federal question[.] Leeper v. Texas, 139 U.S. 462, 467 (1891); Betzer v. Bell, No. 0810246, 2009 WL 230222, at *6 (E.D. Mich. Jan. 30, 2009). As a result, Petitioner s claims that MICH. COMP. LAWS § 791.233e and Administrative Rules 791.7701-7710 were not validly enacted under the Michigan constitution or violate the separation of powers between branches of state government raise questions of state law only. See Hackworth v. Bell, No. 08-11059, 2009 WL 579414, at *6 (E.D. Mich. Mar. 5, 2009) (citing Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000) (holding that a claim asserting a conviction was obtained under an invalidly enacted statute, which -6- also was allegedly a violation of the separation of powers clause, raised non-cognizable state-law issues)). Accordingly, Petitioner is not entitled to habeas relief on his claims. Conclusion In light of the foregoing, the Court will summarily dismiss Petitioner s application pursuant to Rule 4 because Defendant Michigan Parole Board is immune from suit and because the petition fails to raise a meritorious federal claim. 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 Rule 4 but granted certificate); Dory v. Comm r of Corr. 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). -7- 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 and Order consistent with this Opinion will be entered. Dated: July 14, 2011 /s/ Janet T. Neff Janet T. Neff United States District Judge -8-
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