ORDER GRANTING MOTION FOR RECONSIDERATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

DAVID M. LAWSON, United States District Judge

On July 24, 2002, the Court issued an Opinion and Order denying the petition for writ of habeas corpus on the ground that the petitioner, whom the Court believed to have been incarcerated at the Detroit Corrections Center at the time he was charged with escape, was not involved in a program that was the substantial equivalent of parole so as to entitle him to a due process hearing when his participation in a community program was revoked. The petitioner filed a timely motion for reconsideration asserting that at the time he was charged with escape and other violations, he actually had been released from prison and was living in at his aunt's home in connection with a program which included use of a tether device to monitor his compliance with curfew restrictions.

After reviewing the petitioner's motion, the respondent's answer to the motion, and the petitioner's reply, the Court concludes that its erroneous belief concerning the petitioner's place of incarceration constituted a palpable defect that compels a different result in the Court's reasoning. Based on the facts that now appear of record, the Court concludes that the release of the petitioner from prison to reside at home, albeit with comprehensive restrictions, is analogous to release on parole and therefore implicates a liberty interest, the deprivation of which requires due process of law. However, the Court also finds that the petitioner was afforded the process he was due when he was given a formal administrative hearing on the charges of escape and substance abuse, which formed the basis of his removal from the community program. Accordingly, the Court will grant the motion for reconsideration but, once again, deny the petition for writ of habeas corpus.

I.

As explained in the initial Opinion and Order, the petitioner, who had been transferred to the jurisdiction of a community corrections center in anticipation of parole, was issued a major misconduct ticket for substance abuse and was found guilty after a formal administrative hearing on March 20, 1998. The next day, he was listed as a "walk away" and apprehended by the Michigan Department of Corrections (M.D.O.C.) Recovery Unit on March 23, 1998. The petitioner was charged with the major misconduct of escape, and he was found guilty of five counts of escape at an administrative hearing on April 10, 1998. The corrections department forfeited 240 days of sentencing credits and raised the petitioner's security classification, which resulted in the petitioner's removal from the community program through which he had been released from prison and allowed to live with his aunt. He was then reincarcerated in a higher-security facility. The parole board also rescinded its previous plan to grant the petitioner parole.

At the time the Court denied the petition, it was under the impression that the petitioner was incarcerated at a correctional facility with work-release privileges. In his response to the petitioner's motion for reconsideration, however, the respondent admits that the petitioner was actually living at a residence in the community, albeit on a "tether," a form of electronically monitoring the remote location of released inmates and their compliance with curfew rules. The respondent insists, however, that Michigan's tether program is more akin to confinement than to parole, and that the petitioner accordingly was not entitled to a due process hearing upon the revocation of his tether status.

II.

In its previous opinion, this Court observed that prisoners have no right to parole, see Juarez v. Renico, 149 F. Supp.2d 319, 322 (E.D.Mich. 2001), nor is there a right to a due process hearing when parole is scheduled but cancelled before the inmate is released. Jago v. Van Curen, 454 U.S. 14, 21 (1981). However, in Morrissey v. Brewer, 408 U.S. 471, 482-84 (1972), the Supreme Court held that revocation of parole must be preceded by a due process hearing for the parolee. "The essence of parole," the Court found, "is release from prison before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence." 408 U.S. at 477. Reiterating that the central inquiry was not whether parole was a "right" or "privilege," but rather whether its revocation would impose a "grievous loss," the Court found that the liberty of a parolee "includes many of the core values of unqualified liberty," and that its deprivation would therefore impose grievous loss. Id. at 482. The Court described the typical conditions of parole as follows:

To accomplish the purpose of parole, those who are allowed to leave prison early are subjected to specified conditions for the duration of their terms. These conditions restrict their activities substantially beyond the ordinary restrictions imposed by law on an individual citizen. Typically, parolees are forbidden to use liquor or to have associations or correspondence with certain categories of undesirable persons. Typically, also they must seek permission from their parole officers before engaging in specified activities, such as changing employment or living quarters, marrying, acquiring or operating a motor vehicle, trav[e]ling outside the community, and incurring substantial indebtedness. Additionally, parolees must regularly report to the parole officer to whom they are assigned and sometimes they must make periodic written reports of their activities.

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a `neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

In the more recent case of Young v. Harper, 520 U.S. 143 (1997), the Supreme Court made clear that Morrissey's protections apply not only to the revocation of parole itself, but also to revocation of prisoner participation in programs that are equivalent to parole. In Young, the Court examined an Oklahoma "preparole" program in which certain prisoners who completed 15% of their sentences could be released into the community on so-called "conditional supervision" when prison overcrowding became excessive. Although the parole board determined who was eligible to participate in the preparole program, the Governor made the ultimate determination of whether parole would be granted. In this particular instance, the Governor revoked the prisoner's release status without explanation. Id. at 146. The petitioner was summarily reincarcerated, and then filed a petition for a writ of habeas corpus, alleging that he was entitled to a due process hearing before his conditional supervision status was revoked. The Oklahoma state courts and federal district court disagreed, but the Tenth Circuit reversed, finding that the "preparole" status enjoyed by the petitioner was the substantial equivalent of parole itself, and that the prisoner was therefore entitled to a Morrissey hearing. Id.

A unanimous Supreme Court agreed and rejected Oklahoma's numerous attempts to distinguish its preparole program from traditional parole. The Court made clear that the applicability of Morrissey was determined not by the label the state places on a particular release program, but rather whether the status of participating offenders is functionally similar to parole. Id. at 148-49 (noting that some of Oklahoma's arguments may "set preparole apart from the specific terms of parole as it existed in Oklahoma, but not from the more general class of parole identified in Morrissey"). Thus, the fact that preparole may have had a different purpose than parole or was under the jurisdiction of a different agency was not relevant. After focusing on the nature of the liberty granted on preparole, rather than the label applied to it, the Supreme Court found that Oklahoma's preparole program, as provided to the prisoner in that case, contained the salient features of parole as described in Morrissey, that is, the ability to be gainfully employed, to associate with family and friends, to form enduring attachments, and other distinguishing characteristics "very different from that of confinement in a prison." Id. at 147.

This passage could just as easily have applied to respondent while he was on preparole. In compliance with state procedures, he was released from prison before the expiration of his sentence. He kept his own residence; he sought, obtained, and maintained a job; and he lived a life generally free of the incidents of imprisonment. To be sure, respondent's liberty was not unlimited. He was not permitted to use alcohol, to incur other than educational debt, or to travel outside the county without permission. App. 7-8. And he was required to report regularly to a parole officer. Id., at 7. The liberty of a parolee is similarly limited, but that did not in Morrissey, 408 U.S., at 478, render such liberty beyond procedural protection.

Having had the petitioner's release status clarified in this case, two of the issues now on reconsideration are (1) whether the petitioner's status was more akin to parole than to confinement, and (2) if so, whether Michigan, by placing the petitioner into the tether program, made an implicit promise that his status would not be revoked unless he violated the terms of his program. If both conditions are met, then the petitioner is entitled to a hearing under the Due Process Clause before his status may be revoked. Id. at 152-53. If not, then he has suffered only a change in security classification, which the Supreme Court has determined does not require a Morrissey hearing. See Meachum v. Fano, 427 U.S. 215, 224 (1976). Furthermore, as noted above, it is well established that prisoners have no right to parole that was scheduled but never imposed. Jago v. Van Curen, 454 U.S. 14, 21 (1981). However, if the petitioner is entitled to a hearing, a third issue emerges: whether the petitioner received the process which was due.

A.

As was the case with the State of Oklahoma in Young, the respondent insists that Michigan's tether program is more akin to confinement than parole because the offender is constantly monitored. However, the use of a tether device to monitor location or compliance with curfew rules does not, by itself, distinguish confinement from non-confinement conditions. It is the convict's circumstance, rather than the means of monitoring it, which must be examined to determine if a liberty interest exists which is protected in some measure by the Due Process Clause. For instance, the Michigan courts have determined that adding a tether feature to the conditions of pretrial release or a sentence of probation does not convert a community program into a custodial one. See, e.g., People v. Reynolds, 195 Mich. App. 182, 184, 489 N.W.2d 128, 129 (1992) (holding that double jeopardy principles did not require offering sentencing credits for time spent on tether, as "[t]he tether program is a restriction, not a confinement"); People v. Britt, 202 Mich. App. 714, 717, 509 N.W.2d 914, 915 (1993) (holding that ex parte order amending probation to include tether requirement did not require due process hearing because tether placement is "not intended to form the bounds of confinement"); id., 509 N.W.2d at 915 (explaining that "the electronic tether is simply a surveillance device for monitoring a defendant's presence in his residence during curfew hours").

Nor is the label which a state places on a prisoner-release program dispositive, as Young makes clear. The correct inquiry is whether the privileges and rights of the prisoner in the program are equivalent to those enjoyed by the typical parolee considered in Morrissey. Put another way, the Court determines whether participation in the program in question is more akin to confinement rather than parole. The State of Michigan argues that despite the petitioner's residence in the community and work-release privileges, the electronic tether program is still more akin to confinement because (1) it monitors the participant at all times; (2) the petitioner is not permitted to leave his residence except for specified reasons; and (3) those reasons do not include recreation, entertainment, or any activity not related to work, community service, or treatment.

The M.D.O.C. administers programs which allow convicts greater access to activities within the community while retaining oversight authority at graduated levels of intensity. Two of those programs are described in Policy Directive (P.D.) 06.03.103 (March 25, 1996) dealing with "Residential and Electronic Programs." In one of those programs, referred to as the Community Corrections Center (CCC) program, the convict is confined in a M.D.O.C. facility called a Community Corrections Center, and allowed to be absent from that center for certain parts of the day while involved in specifically delineated activities. In the other program — the electronic tether program, as the respondent refers to it — the convict is not confined in any prison facility, but rather lives at home. He is authorized to leave home for such times and purposes as are allowed CCC inmates, and violations of the curfew rules are processed in the same manner for both programs. The essential difference between the two, however, is that the convict on the electronic tether program is released from prison, while the inmate confined at the CCC is in custody at a M.D.O.C. facility.

There are features of the CCC program which are nearly identical to those of the electronic tether program. According to P.D. 06.03.103, the curfew rules which apply to both CCC prisoners and electronic tether convicts are described as follows:

G. The following conditions shall govern the movement of prisoners outside of community corrections centers:

AUTHORIZED ABSENCES CURFEWS

1. Work at paid Actual work time plus employment attend reasonable travel time. school or training.

2. Obtain necessary medical Actual time plus services. reasonable travel time.

3. Seek employment. Actual time plus reasonable travel time between the hours of 8:00 a.m. to 10:00 p.m. non-holiday, M-F.

4. Attend to other Actual time plus reasonable pre-authorized business, travel time between the only if no one else is hours of 8:00 a.m. and 1:00 available to perform these p.m. functions for them (e.g., obtain social security card, laundry, interview/register for programs), to visit a critically ill immediate family member, to attend a funeral of an immediate family member, to attend religious services, etc. Does not include recreation, social events, visiting friends, etc.

5. Participate in Actual time, plus reasonable treatment program. travel time between the hours of 8:00 a.m. to 9:00 p.m.

6. Participate in Actual time, plus reasonable Community Service travel time between the Work (CSW). hours of 8:00 a.m. to 9:00 p.m. CSW beyond 8:00 p.m. must be under direct supervision of either Corrections or CSW agency staff. . . .

15. The following conditions shall govern the movement of EM prisoners:

AUTHORIZED ABSENCES CURFEWS

1. Work at paid Actual work time plus employment reasonable travel attend school or training

2. Obtain necessary Actual time plus medical services. reasonable travel time.

3. Seek employment. Actual time plus reasonable travel time between the hours of 8:00 a.m. and 1:00 p.m., non-holiday hours, M-F.

4. Attend to other Actual time plus reasonable pre-authorized travel time between the hours business, only if of 8:00 a.m. and 1:00 p.m. no one else is available to perform these function for them (e.g., obtain social security card, laundry, interview/register for programs), to visit a critically ill immediate family member, to attend a funeral of an immediate family member, to attend religious services, etc. Does not include recreation, social events, visiting friends, etc.

5. Participate in Actual time, plus reasonable treatment program. travel time between the hours of 8:00 a.m. and 9:00 p.m.

6. Participate in Community Actual time, plus reasonable Service (CSW) travel time between the hours of 8:00 a.m. and 9:00 p.m. CSW beyond 8:00 p.m. must be under direct supervision of either Corrections or CSW agency staff.

P. Field agents, as authorized by the Manager or Supervisor, may grant reasonable extensions to the curfew time limits for Paragraph O, Numbers 1 through 6 above, provided the extension is necessary and it was not foreseeable at the time of departure.

Q. Field agents may grant reasonable exceptions to curfew time limits for authorized absences to seek employment (See Paragraph O, Number 3) or for the other preauthorized business (See Paragraph O, Number 4). No exceptions to the curfew time limits shall be granted for participation in treatment programs (Paragraph O, Number 5) or participation in community service work (Paragraph O, Number 6).

P.D. 06.03.103. The CCC rules include an additional provision allowing visitation to a future home placement site.

However, the M.D.O.C. also uses electronic tethers to monitor certain convicts formally admitted to parole. According to P.D. 06.04.132 (June 30, 1994), the following rules apply:

POLICY: A. If the Parole Board orders electronic monitoring as a special condition, the standards set out below shall apply.

AUTHORIZED ABSENCES:

2. Parolees on electronic monitoring may be scheduled for time out of their homes only for the following reasons:

1. Work at paid employment.

2. Seek employment.

3. Participate in an educational, training, or other approved treatment program.

4. Obtain necessary medical services.

5. Participate in approved community service work.

6. Attend to other preauthorized personal business only if no one else is available to perform these functions for them (e.g. obtain social security card, interview/register for programs, immediate family funeral, laundry, church, etc.) Does not include recreation, social events, visiting friends, etc.

3. Each parolee's curfew hours shall be established in accordance with this policy. Field Agents shall provide notification to EMS staff or a parolee's curfew hours, changes in curfew hours, and all necessary information for initial entry of a parolee into the EMS system. This notification shall be provided far enough in advance so as to allow MS staff sufficient time to complete the data entry prior to the effective time of the information.

4. The following curfews apply:

1. Parolees may be absent from their residence for the actual time involved in work/school/training/community service, plus reasonable travel time.

2. Parolees seeking employment may be permitted temporary absences between 8:00 a.m. and 5:00 p.m. on holidays, Monday through Friday.

3. Absences from the home for medical treatments, drug counseling, etc., are permitted. Each occurrence shall be approved by the field agent and documented in the parolee's case notes.

5. The following personal business hours are the maximum allowed:

1. Employed Full-Time: Parolees working a minimum of 30 hours per week who are current in their monetary or community service requirements may be allowed, if needed, personal business time of up to two, five hour blocks of time (ten hours total) per week, at the agent's discretion. Personal business does not include recreation, social events, visiting friends, etc.

2. Employed Part-time or Full-time Student: Parolees working a minimum of 16 hours per week, including community service work, or enrolled in and attending an academic or training program defined as full-time by the academic training institution, may be allowed, if needed, personal business time of up to four hours, once per week. These parolees must also be current in their monetary and community service requirements.

3. Unemployed, Part-time Student, and Others: May be allowed, if needed, personal business time of up to two hours, once per week, if they are current in their monetary and community service requirements.

6. Parolees may not travel to unauthorized destinations or change destinations without prior staff approval. Time extensions to authorized destinations may be granted, if the extension is reasonable, necessary, and not foreseeable. No extensions for personal business shall be allowed. The EMS staff shall log the extensions, the authorizing agent's name, and time and date of the authorization.

P.D. 06.04.132(A) through (F).

The Court finds it difficult to discern a meaningful difference between convicts placed in their own homes under the electronic tether monitoring program, and those who are designated as "parolees" supervised on the Electronic Monitoring System (EMS). Both are confined to their homes except for certain designated activities, both are permitted to work at paid employment, both may engage in a limited amount of "personal business," and both must observe curfew hours which are strictly tied to the time periods required for approved outside activity. The differences to which the respondent points are really not differences at all. Those features — constant monitoring, permission to leave one's residence only for specific and enumerated reasons, and prohibition against personal recreation and entertainment away from the residence — are common to both programs.

The actual differences between the two programs, one in which parolees are released from prison to live at home while supervised on EMS, and the community program in which convicts are placed at home and monitored on the electronic tether program, are twofold: one is the label the M.D.O.C. places on the convicts — parolees versus inmates — and the other is the enforcement mechanism used to redress violations. These are not meaningful differences for the purpose of applying the Due Process Clause, according to Young. See also Kim v. Hurston, 182 F.3d 113, 117 (2d Cir. 1999) (holding that inmates on work-release programs were entitled to a hearing under Morrissey before participation in such programs was revoked).

B.

Another aspect of the liberty interest of parolees described by the Supreme Court in both Morrissey and Young is the "implicit promise that parole will be revoked only if [the parolee] fails to live up to the parole conditions." Morrissey, 408 U.S. at 482; Young, 520 U.S. at 147-48. The court of appeals in Huang v. Johnson, 251 F.3d 65 (2d Cir. 2001), pointed to language negating that feature in the "day placement" program under review as a factor leading to the finding that no due process hearing was required before reclassifying the juvenile offender in that case to more restrictive confinement. Id. at 72. The respondent has offered no evidence of any such disclaimers in this case. Rather, the description of the program which the respondent cites in his brief states that the purpose of the tether system is to insure that "an offender is living up to the supervision requirements of his or her placement." Michigan Department of Corrections, Electronic Monitoring of Offenders in the Community, at http://www.michigan.gov/corrections/0,1607,7-119-1435-5032-,00.htm l (last visited Nov. 6, 2002). Statements such as this suggest an "implicit promise" that if the convict keeps his part of the bargain, the M.D.O.C. likewise will "live up to" its placement decision and allow the offender to remain in the program. To breach that implicit promise would be fundamentally unfair. The Due Process Clause thus requires that procedures be in place to insure that revocation of the convict's liberty interest is not arbitrary, that is, that a "violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the [offender]'s behavior." Morrissey, 408 U.S. at 484.

C.

This Court finds that placement of an inmate in Michigan's program in which he or she is released from prison and allowed to live at home, even with restrictions which include monitoring by means of an electronic tether, is the functional equivalent of parole, as that concept is described in Morrissey v. Brewer, so as to require a due process hearing before that status can be revoked. The process that is due includes written notice of the violation; disclosure to the convict of evidence against him; the opportunity to present evidence, appear in person, and confront and cross-examine witnesses; a neutral and detached decision-maker; and a written decision from the fact finder explaining the outcome. Id. at 489.

In this case, the petitioner was removed from the program when he was found guilty of major misconduct violations. Those violations consisted of charges of substance abuse and "escape." The petitioner was given formal hearings on these charges. According to the Michigan Administrative Code, Rule (R.) 791.5501, an inmate charged with major misconduct is afforded a hearing within fourteen business days. At least twenty-four hours before the hearing, the inmate receives written notice of the charges, a description of the circumstances which gave rise to the hearing, and notification of the hearing date. R. 791.3315(1). The inmate also has a right at the hearing to be present and offer evidence, submit written questions for the hearing officer to pose to witnesses, call witnesses, and compel disclosure of documents. R. 791.3315(5). The hearing officer must be neutral, that is, "have no prior direct involvement in the matter which is at issue in a hearing," and must issue a written decision. R. 791.3301(2).

The formal hearing process includes all of the informal procedural guarantees which the Supreme Court has identified as demanded by the circumstances surrounding parole revocation. See Morrissey, 408 U.S. at 481. It is true that Michigan's parole violation statute also calls for assistance of counsel for the parolee. See Mich. Comp Laws § 791.240a. But the state is free to provide protections greater than those required by the Constitution. See California v. Ramos, 463 U.S. 992, 1013-14 (1983). For the purpose of adjudicating the petition in this case, it is enough to observe that the petitioner's rights under the Due Process Clause have not been violated. He was entitled to procedural safeguards before his community status was revoked, and he received them.

III.

The Court's original denial of the petition for writ of habeas corpus was substantially motivated by its belief that the petitioner was being housed at a correctional facility, not a residence in the community. This misapprehension was a fundamental error by which the Court was misled, and the correction of the error has made a significant difference in the Court's reasoning. However, the Court finds that the petitioner would not have been entitled to the writ even if the Court had known that the petitioner had been participating in the electronic tether program at the time he was charged and convicted of substance abuse and escape, because the state has complied with the requirements of the Due Process Clause.

Accordingly, it is ORDERED that the Motion for Reconsideration [dkt # 50] is GRANTED.

It is further ORDERED that, on reconsideration, the petition for writ of habeas corpus is DENIED.

It is further ORDERED that the Court's prior award to the petitioner of a Certificate of Appealability is unaffected by the denial of his motion for reconsideration, although the Court will modify its phrasing of the certificate to conform with this Order. As amended, the Court therefore GRANTS the petitioner a certificate of appealability as to the question of whether he received the process to which he was due under Morrissey v. Brewer, 408 U.S. 471 (1972), when his participation in the M.D.O.C.'s community program was terminated.