Hughes #182524 v. Napels, No. 2:2012cv00360 - Document 2 (W.D. Mich. 2012)

Court Description: OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION MARVIN D. HUGHES, Petitioner, v. Case No. 2:12-cv-360 Honorable R. Allan Edgar ROBERT NAPELS, 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. Factual Allegations Petitioner filed this habeas corpus petition asserting that he is challenging the August 24, 2012, denial of parole. Petitioner alleges that he attended a parole board interview on August 14, 2012, and that on August 24, Parole Board Members Jane E. Price and Stephen Deboer ordered that Petitioner be continued for an additional 12 months on among other crimes, an expired 2 yr felony firearm sentence. Petitioner states that the maximum term of his 2 year felony firearm sentence was added to the maximum term of Petitioner s armed robbery convictions. The start date for the felony firearm sentence was February 4, 1986. Plaintiff asserts that pursuant to MCL 750.227b, the sentence on a felony firearm conviction must run consecutive to and preceding any term of imprisonment imposed for the underlying felony conviction. Petitioner contends that he had a legitimate expectation that his felony firearm sentence would terminate on February 4, 1988, two years after its imposition. Petitioner states that the decision of Parole Board Members Jane E. Price and Stephen Deboer to consider his felony firearm sentence and his armed robbery sentence to be aggregated, constitutes double jeopardy and violates his rights to due process and to be free from cruel and unusual punishment. Discussion Petitioner claims that the August 24, 2012, denial of parole violated his constitutional rights because it was based on an expired sentence. However, according to the MDOC Offender Tracking Information System (OTIS), Petitioner is serving two concurrent sentences for 20 to 60 years imprisonment for armed robbery. (See http://mdocweb.state.mi.us/otis2/otis2profile. aspx?mdocNumber=182524.) Petitioner states that he does not take issue with the Parole Board decision to hold him in custody an additional 12-months on the active armed robbery sentence. -2- Petitioner fails to allege any facts showing that the Parole Board specifically relied on the felony firearm sentence in denying him parole. As noted above, Petitioner claims that the denial of parole constituted double jeopardy. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. Rashad v. Burt, 108 F.3d 677, 679 (6th Cir. 1997) (quoting U.S. Const. amend. V.). The Double Jeopardy Clause prohibits multiple punishments for the same criminal offense. United States v. Hebeka, 89 F.3d 279, 282 (6th Cir.), cert. denied, 519 U.S. 999, 117 S. Ct. 496 (1996). Because Petitioner has no legitimate entitlement to parole prior to the completion of his sentence, the denial of parole cannot constitute double jeopardy. Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994). The denial of parole does not change the length of petitioner s sentence, but merely denies him an early release. Therefore, it cannot be viewed as the imposition of more than one punishment for the same offense. Mahn v. Gunter, 978 F.2d 599, 602 (10th Cir. 1992); Alessi v. Quinlan, 711 F.2d 497, 500 (2d Cir. 1983); Averhart v. Tutsie, 618 F.2d 479, 483 (7th Cir. 1980); Coronado v. U.S. Board of Parole, 540 F.2d 216, 217 (5th Cir. 1976). Consequently, Petitioner s double jeopardy claim is without merit. Petitioner also claims that his parole denial violates his Fourteenth Amendment due process rights. 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). Petitioner 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 -3- 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. In a recent published decision, the Sixth Circuit reiterated the continuing validity of Sweeton. See Crump v. Lafler, 657 F.3d 393, 404 (6th Cir. 2011). In Crump, the court held that the adoption of specific parole guidelines since Sweeton does not lead to the conclusion that parole release is mandated upon reaching a high probability of parole. See id.; see also Carnes v. Engler, 76 F. App x 79, 80 (6th Cir. 2003). In addition, the Sixth Circuit has rejected the argument that the Due Process Clause is implicated when changes to parole procedures and practices have resulted in incarcerations that exceed the subjective expectation of the sentencing judge. See Foster v. Booker, 595 F.3d 353, 369 (6th Cir. 2010). Finally, 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). Until Petitioner has served his 60-year maximum sentence, he has no reasonable expectation of liberty. 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 -4- absence of a liberty interest, Petitioner fails to state a claim for a violation of his procedural due process rights. Finally, Petitioner claims that the August 24, 2012, parole denial violated his rights under the Eighth Amendment. The Eighth Amendment to the United States Constitution, applicable to the states through the Due Process Clause of the Fourteenth Amendment, protects against cruel and unusual punishments. See U.S. CONST., amend. VIII; Harmelin v. Michigan, 501 U.S. 957, 962 (1991). The Eighth Amendment, however, does not require strict proportionality between a crime and its punishment. Harmelin, 501 U.S. at 965; United States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000). Consequently, only an extreme disparity between crime and sentence offends the Eighth Amendment. Marks, 209 F.3d at 583. A sentence that falls within the maximum penalty authorized by statute generally does not constitute cruel and unusual punishment. Austin v. Jackson, 213 F.3d 298, 302 (6th Cir.2000) (quoting United States v. Organek, 65 F.3d 60, 62 (6th Cir. 1995)). In the instant case, the Court notes at the outset that the Eighth Amendment claim is factually baseless. The parole board did not issue a sentence, but merely declined to extend parole to Petitioner on August 24, 2012. See Preston v. Hughes, No. 97-6507, 1999 WL 107970, *2 (6th Cir. Feb. 10, 1999). Moreover, assuming Defendants decision may be considered the imposition of punishment, Petitioner s sentence falls within the maximum allowed by statute. See MCL 750.529 (one found guilty of armed robbery may be sentenced to imprisonment for life or for any term of years). Therefore, Petitioner s sentence does not run afoul of the Eighth Amendment s ban of cruel and unusual punishment. Austin, 213 F.3d at 302. -5- 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. 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). 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 -6- 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: 10/5/2012 /s/ R. Allan Edgar R. Allan Edgar United States District Judge