OPINION ORDER DENYING HABEAS PETITION AND DENYING CERTIFICATE OF APPEALABILITY

PATRICK J. DUGGAN, United States District Court Judge.

I. Introduction

Petitioner John Vera, a state prisoner currently confined at the Mid-Michigan Correctional Facility in St. Louis, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and 2243. In his pleadings, Petitioner challenges the Michigan Parole Board's denial of his release on parole, resulting in his continued confinement. For the reasons set forth below, the petition for a writ of habeas corpus shall be denied.

II. Facts and Procedural History

Petitioner pleaded guilty to assault with intent to do great bodily harm less than murder in violation of MICH. COMP. LAWS § 750.84 in the Kent County Circuit Court and was sentenced to six to ten years imprisonment in 1993. Petitioner does not contest his conviction in this action. Rather, he challenges the validity of his February 4, 2000 and May 31, 2001 parole hearings before the Michigan Parole Board.

In denying Petitioner parole release on those occasions, the Parole Board stated that it lacked reasonable assurance that Petitioner would not become a menace to society or to the public safety if he was released on parole. The Parole Board stated that reasons supporting its action included the fact that Petitioner's crime was an assaultive crime involving the touching or discharge of a dangerous weapon, which resulted in injury and showed a reckless disregard for life. The Parole Board found that Petitioner has a history of assaultive and violent crimes, has acquired prison misconducts while incarcerated, has been denied community placement, and has a history of probation failure and substance abuse. (See 2/4/00 5/31/01 Parole Board Notices of Decisions). Petitioner filed the instant petition on September 12, 2001. Respondent filed an answer to the petition on March 19, 2002, asserting that it should be denied for lack of merit.

III. Discussion

Petitioner contends that he was denied his constitutional right to have a "neutral and detached" decision-maker at his parole hearings because parole board members have a pecuniary interest in making parole decisions under MICH. COMP. LAWS § 791.231(a) and because those members are pro-law enforcement and biased against prisoners.

Under Michigan law, parole board members are appointed by the director of the Michigan Department of Corrections and are not within the state civil service provisions. See MICH. COMP. LAWS § 791.231a(1). Pursuant to MICH. COMP. LAWS § 791.231a(2), parole board members are appointed for limited terms of years and may be reappointed. Further, the director of the Department of Corrections "may remove a member of the parole board for incompetency, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office." MICH. COMP. LAWS § 750.231a(2). Petitioner argues that these provisions subject parole board members to undue pressure to deny parole, such that members have a direct, pecuniary interest in issuing parole denials and are not "neutral and detached." Petitioner relatedly claims that parole board members are biased against prisoners based upon their criminal justice backgrounds and the fact that they have "dedicated their lives to sending citizens to prison for violating the law." Petitioner requests that the Court either order a new parole hearing or grant him release on parole.

Respondent contends that the petition should be denied because Petitioner's claims lack merit. Respondent asserts that since Petitioner has no protected liberty interest in parole release, he has no constitutional right to due process in the parole decision-making process. Respondent further asserts that Petitioner has not shown that the Michigan Parole Board has a pecuniary interest in parole denials or is unfairly biased.

There is no constitutional right of a lawfully 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, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979). Simply stated, there is no federal constitutional right to parole. Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990); Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994).

In Michigan, a prisoner's release on parole is discretionary with the Michigan Parole Board. See, e.g., In Re Parole of Johnson, 235 Mich. App. 21 (1999) (per curiam) (citing MICH. COMP. LAWS § 791.234(6)(d) and 791.234(7)); see also MICH. COMP. LAWS § 791.234(9). The Michigan parole statute therefore does not create a right to be paroled. See Hurst v. Department of Corrections Parole Bd., 119 Mich. App. 25, 29 (1982). Because the Michigan Parole Board has essentially unfettered discretion whether to grant parole, a prisoner does not have a protected liberty interest in being released on parole. Canales v. Gabry, 844 F. Supp. 1167, 1171 (E.D. Mich. 1994). "[T]he expectancy of release upon parole is not a constitutionally protected interest where the state holds out `no more than a mere hope that the benefit will be obtained.'" Wright v. Trammell, 810 F.2d 589, 590 (6th Cir. 1987) (quoting Greenholtz, 442 U.S. at 11, 99 S.Ct. at 2105).

Because release on parole is discretionary with the Michigan Parole Board, Petitioner does "not have a sufficient liberty interest in his future parole release to be entitled to due process in his parole release proceedings." Sharp v. Leonard, 611 F.2d 136, 137 (6th Cir. 1979); Juarez v. Renico, 149 F. Supp.2d 319, 322-23 (E.D. Mich. 2001) (citing Sharp and holding that a Michigan prisoner is not entitled to due process protections in parole proceedings); see also Brown v. Lundgren, 528 F.2d 1050, 1052 (5th Cir. 1976) (mere expectation of parole release while still in otherwise lawful custody is not so vested as to result in a grievous loss of a protected liberty interest triggering due process protections). Petitioner is thus not entitled to relief on the claims presented in his petition.

Moreover, even if Petitioner were entitled to due process of law in the parole decision-making process, he still would not entitled to habeas relief on his claim. Petitioner has not shown that the Michigan Parole Board has a pecuniary interest in denying parole or is otherwise unfairly biased against prisoners.

In Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972), the United States Supreme Court held that the requirements of due process apply to the revocation of an individual's parole. The procedures required at such a hearing include written notice of the alleged parole violations, disclosure of evidence against the parolee, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses, a "neutral and detached" hearing body such as a traditional parole board, and a written statement by the fact-finders as to the evidence relied on and the reasons for revoking parole. Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604.

In this case, Petitioner asserts that the Michigan Parole Board is not a "fair and neutral" decision-maker. In the parole revocation context, the neutrality requirement is satisfied if the revocation decision is made by "someone such as a parole officer other than the one who has made the report of parole violations or has recommended revocation." Morrissey, 408 U.S. at 486, 92 S.Ct. at 2603. Neutrality does not require civil service protection, or employment by a different agency, a law degree, or election or appointment as a judicial officer. Id. Petitioner does not allege that any of the parole board members who denied him parole release were responsible for his arrest or prosecution, or stated prior to his parole consideration hearing that they considered him unfit for parole release. Petitioner has thus not shown that he was deprived of a hearing before a neutral and detached decision-maker or that the parole board members were biased against him.

"[T]he Supreme Court has held that the Fourteenth Amendment right to due process is certainly compromised where the decision maker has a `direct, personal, substantial pecuniary interest' in the proceedings." Depiero v. City of Macedonia, 180 F.3d 770, 777 (6th Cir. 1999) (quoting Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed 749 (1927)). In Tumey the direct, personal, substantial pecuniary interest in the outcome of the proceedings was cash payments the mayor (who also functioned as a judge) received when a defendant was convicted, but did not receive if the defendant was acquitted. Petitioner cannot show such a pecuniary interest.

Petitioner also seems to claim that MICH. COMP. LAWS § 791.231a, which removes parole board members from the protection of the State Civil Service Act and authorizes the director of the Michigan Department of Corrections to remove parole board members for "incompetency, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office," forces parole board members to deny parole to worthy applicants in order to keep their jobs. To conclude from this language that a parole board member may be removed as a result of a decision to grant or deny parole in an individual case or class of cases "overstates the argument" and is too speculative to warrant habeas relief. Juarez, 149 F. Supp.2d at 324. Absent "substantial evidence of an arbitrary and capricious abuse of discretion amounting to a denial of a constitutional right, and absent evidence of a decision based on an unconstitutional factor such as an applicant's race, sex, religion, or prior exercise of protected constitutional rights," a federal court should not interfere with the parole board's exercise of its discretion in parole decisions. Id.

In this case, Petitioner pleaded guilty to assault with intent to commit great bodily harm less than murder and was sentenced to six to ten years imprisonment. The Court is not persuaded that the Michigan Parole Board's denial of parole to Petitioner for the reasons stated in its February 4, 2000 and May 31, 2001 Notices of Decisions constituted an abuse of discretion. Habeas relief is therefore not warranted.

IV. Certificate of Appealability

At this time the Court shall also make a determination as to any certificate of appealability that may be requested by Petitioner. 28 U.S.C. § 2253 governs appeals of habeas corpus proceedings, providing that "[i]n a habeas corpus proceeding . . . before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held." However, unless a certificate of appealability is issued, an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding. Section 2253(c)(2) states, in pertinent part: "A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right." See also Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997).

As the Court does not believe that Petitioner has made a "substantial showing of the denial of a constitutional right," the Court shall deny any request for a Certificate of Appealability.

V. Order

For the reasons set forth above, IT IS ORDERED that Petitioner John F. Vera's petition for a writ of habeas corpus is DENIED.

IT IS FURTHER ORDERED that any request for a certificate of appealability is DENIED.

A Judgment consistent with this Opinion Order shall issue forthwith.

JUDGMENT

This matter having come before the Court on:

Petitioner John F. Vera's Petition Pursuant to 28 U.S.C. § 2241 2243 for A Writ of Habeas Corpus

and the Court, having issued an Opinion Order on this date, now therefore, in accordance with such Opinion Order,

IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED.