Opinion
Case No. 1:01-cv-824
January 17, 2002
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.), cert. denied, 400 U.S. 906 (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 Petitioner fails to present a meritorious federal claim.
Discussion
I. Factual Allegations
Petitioner is currently incarcerated in the Pugsley Correctional Facility. Petitioner is currently serving a prison sentence of three to five years for operating a motor vehicle under the influence of liquor, third offense. In his petition, Petitioner does not challenge the validity of his conviction; rather, he challenges the denial of his parole by the Michigan Parole Board on October 21, 2001. (See Attach. to Pet., 10/21/01 Parole Board Notice of Action.) Petitioner was denied parole despite the fact that he scored under the parole guidelines as having a high probability of parole. Pursuant to MICH. COMP. LAWS § 791.233d(6), the parole board may depart from the parole guidelines by denying parole to a prisoner who scores as having a high probability of parole for a "substantial and compelling reason." In the notice of action, the parole board gave the following substantial and compelling reason for departing from the guidelines in Petitioner's case: "Prisoner has not demonstrated that he has gained sufficient insight into his alcoholism to provide the necessary assurance that risk has been reduced. Thus deviation is warranted from guideline." The parole board further noted that Petitioner has a longstanding history of substance abuse and a history of similar drug/alcohol related crimes. Petitioner will be reconsidered for parole in September, 2003.
In his habeas corpus application, Petitioner raises the following five grounds for relief: (1) parole authorities improperly departed from the parole guidelines of high probability of parole without a "substantial and compelling" reason as required by law; (2) the decision to deny parole was based on reasons already considered by parole guideline score of high probability of success on parole; (3) the denial of parole was based on offense driven factors instead of institutional variables; (4) specific issues and concerns were not identified in the notice of intent to conduct the parole interview as required by state law; and (5) denial of the right to apply for leave to appeal a parole board decision in state court constitutes discrimination against prisoners.
II. Exhaustion
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). Exhaustion requires a petitioner to "fairly present" federal claims so that state courts have a "fair opportunity" to apply controlling legal principles to the facts bearing upon a petitioner's constitutional claim. See O'Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77 (1971) (cited by Duncan v. Henry, 513 U.S. 364, 365 (1995) and Anderson v. Harless, 459 U.S. 4, 6 (1982)). "[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845. The district court can and must raise the exhaustion issue sua sponte, when it clearly appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen, 424 F.2d at 138-39. Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Petitioner has not shown that any of his claims were raised before the state courts. An applicant has not exhausted available state remedies if he has the right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). 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 law. 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(9) (as amended by 1999 Mich. Pub. Acts 191). 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 M.C.R. 7.104(D)(1), (2)(a). Consequently, because state law prohibits a prisoner from appealing a parole denial, Petitioner has no available state court remedy in which to exhaust his claims.
III. Due Process
Petitioner's first four grounds for relief allege violations of his Fourteenth Amendment due process rights. Petitioner's due process claim must fail because Petitioner 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 and Corr. Complex, 442 U.S. 1, 7 (1979). Although a state may establish a parole system, it has no duty to do so and 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; Board 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).
The Sixth Circuit, noting "the broad powers of the Michigan procedural authorities to deny parole," has held that the Michigan system does not create a liberty interest in parole. Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc), cert. denied, 513 U.S. 1158 (1995). In unpublished decisions, the Sixth Circuit also has held that particular parts of Michigan's statutory parole scheme do not create a liberty interest in parole. See Fifer v. Michigan 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); Vertin v. Gabry, No. 94-2267, 1995 WL 613692, at *1 (6th Cir. Oct. 18, 1995); Leaphart v. Gach, No. 95-1639, 1995 WL 734480, at *2 (6th Cir. Dec. 11, 1995), cert. denied, 522 U.S. 1057 (1998); Janiskee v. Michigan Dep't of Corr., No. 91-1103, 1991 WL 76181, at *1 (6th Cir. May 9, 1991); Neff v. Johnson, No. 92-1818, 1993 WL 11880, at *1 (6th Cir. Jan. 21, 1993); Haynes v. Hudson, No. 89-2006, 1990 WL 41025, at *1 (6th Cir. April 10, 1990). Further, the Michigan Supreme Court has recognized that there is no liberty interest in parole under the Michigan system. Glover v. Michigan Parole Bd., 596 N.W.2d 598, 603-604 (Mich. 1999). Because Petitioner has no liberty interest at stake, his due process claims must fail.
IV. Equal Protection
Petitioner also contends that his right to equal protection of the laws has been violated because the prosecutors and victims may appeal the grant of parole, while a prisoner has no right to appeal whatsoever. The Equal Protection Clause of the Fourteenth Amendment provides that a state may not "deny to any person within its jurisdiction the equal protection of the laws," which is essentially a direction that all persons similarly situated should be treated alike. U.S. CONST., amend XIV; City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985).
"Strict scrutiny of an alleged equal protection violation is only employed if the classification at issue discriminates on the basis of a suspect criterion or impinges upon a fundamental right." Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000). The Michigan legislation does not implicate a fundamental right because there is no constitutional right to release on parole. Greenholtz, 442 U.S. at 7; Sweeton, 27 F.3d 1164-65. In addition, prisoners are not a suspect class. Hadix, 230 F.3d at 843; Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir. 1998), cert. denied, 525 U.S. 1139 (1999); Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997); see also Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir. 1997) (dismissing as "completely unsupported" the idea that prisoners are a suspect class). Thus, in order to establish a violation of equal protection, the petitioner must show that the Michigan scheme is not rationally related to any conceivable legitimate legislative purpose. Hadix, 230 F.3d at 843. Under this standard,
the statute will be afforded a strong presumption of validity and must be upheld as long as `there is a rational relationship between the disparity of treatment and some legitimate government purpose.' Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 2643, 125 L.Ed.2d 257 (1993). The government has no obligation to produce evidence to support the rationality of its statutory classifications and may rely entirely on rational speculation unsupported by any evidence or empirical data. See FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 2098, 124 L.Ed.2d 211 (1993). The legislature is not even required to articulate any purpose or rationale in support of its legislation. See Nordlinger v. Hahn, 505 U.S. 1, 15, 112 S.Ct. 2326, 2334, 120 L.Ed.2d 1, (1992). Consequently, plaintiffs bear the heavy burden of `negativ[ing] every conceivable basis which might support [the legislation], . . . whether or not the basis has a foundation in the record.' Heller, 509 U.S. at 320, 113 S.Ct. at 2643.
Hadix, 230 F.3d at 843.
A. Similarly situated
The similarly situated inquiry focuses on whether the plaintiffs are similarly situated to another group for purposes of the challenged government action. More v. Farrier, 984 F.2d 269, 271 (8th Cir.), cert. denied, 510 U.S. 819 (1993); accord Reynolds v. Sims, 377 U.S. 533, 565 (1964) (equal protection requires "uniform treatment of persons standing in the same relation to the governmental action questioned or challenged"). As stated by the First Circuit,
The test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Much as in the lawyer's art of distinguishing cases, the `relevant aspects' are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.
Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989). "The initial discretion to determine what is `different' and what is `the same' resides in the legislatures of the States." Plyler v. Doe, 457 U.S. 202, 216 (1982).
On the one hand, one could argue that inmates, prosecutors, and victims are "similarly situated" for purposes of this case because each may become an aggrieved party as a result of a decision — either favorable to parole or unfavorable — by the Michigan parole board. On the other hand, it is difficult to conceive of these parties as being similarly situated for purposes of a parole decision. A prisoner who is denied parole may have his file reviewed again in the future. MICH. COMP. LAWS § 791.234(6)(a), (b). In contrast, allowing the prosecutor and victim to appeal a decision granting parole appears to be the only means by which the state can assure both the public and the victim an opportunity to challenge what they may believe is a wrong decision granting early release. In addition, because "the prison setting is sui generis," a legislature's choice "to treat prisoners differently than non-prisoners is plainly justified by the idiosyncratic characteristics of that setting." Boivin v. Black, 225 F.3d 36, 44 (1st Cir. 2000). "[P]risoners have substantial quantities of free time, have all their basic needs met, and are provided with free writing materials and often legal assistance." Hadix, 230 F.3d at 844. "[W]hat would normally be thought of as the burdens which attend litigation . . . carry few or no opportunity cost to prisoners." Id.
However, whether or not prisoners may be deemed "similarly situated" to prosecutors and victims for purposes of a decision of the parole board, it is clear that the petitioner cannot possibly prevail on his equal protection claim because the classification survives rational basis review. See Wilson, 148 F.3d at 604 ("differentiation between prisoners and non-prisoners . . . has a rational basis").
B. Rational basis
"[U]nder rational basis review, . . . the classification need not be the most narrowly tailored means available to achieve the desired end. . . . The statute need not be the best possible reaction to the perception, nor does the perception itself need to be heavily buttressed by evidentiary support. It is enough that the perceived problem is not obviously implausible and the solution is rationally suited to address that problem." Zehner, 133 F.3d at 463 (rejecting prisoners' argument that 42 U.S.C. § 1997e(e) violates equal protection by limiting relief which may be sought by prisoners). Where there are "plausible reasons" for the legislature's action, the court's inquiry is at an end; "[i]t is, of course, `constitutionally irrelevant whether this reasoning in fact underlay the legislative decision[.]'" U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980) (quoting Flemming v. Nestor, 363 U.S. 603, 612 (1960)). In addition, the Court's determination in this case must be made in light of the constant admonition by the Supreme Court that the problems of prison administration are peculiarly for resolution by prison authorities and their resolution should be accorded deference by the courts. See Washintgon v. Harper, 494 U.S. 210, 224 (1990); Turner v. Safley, 482 U.S. 78, 84-96 (1987); O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); Bell v. Wolfish, 441 U.S. 520, 547 (1979); Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 125-126 (1977).
"`The purpose of parole is to keep a prisoner in legal custody while permitting him to live beyond the prison enclosure so that he may have an opportunity to show that he can refrain from committing crime.'" People v. Gregorczyk, 443 N.W.2d 816, 821 (Mich.Ct.App. 1989) (citation omitted). Protection of public safety is a stated purpose of Michigan's parole statutes. Hopkins v. Michigan Parole Board, 604 N.W.2d 686, 689 (Mich.Ct.App. 1999) ("First and foremost, [the Parole Board] may not grant a prisoner liberty on parole until it `has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner's mental and social attitude, that the prisoner will not become a menace to society or to the public safety'") (quoting MICH. COMP. LAWS § 791.233(1)(a)). Preventing the early release of potentially violent inmates is a legitimate governmental interest. See Wottlin v. Fleming, 136 F.3d 1032, 1037 (5th Cir. 1998) (affirming rejection of equal protection challenge raised by § 2241 petitioner; Bureau of Prisons rule which provided that inmates having prior convictions for homicide, forcible rape, robbery, or aggravated assault were not eligible for early release was "rationally related to the legitimate governmental interest of preventing the early release of potentially violent inmates").
In addition, Michigan's statutory scheme furthers the rights of victims, see MICH. COMP. LAWS § 780.771, which is also a legitimate and rational state purpose. Johnson v. Rodriguez, 110 F.3d 299, 307 n. 11 (5th Cir.) (reversing district court finding that Texas parole scheme violated prisoners' equal protection rights), cert. denied, 522 U.S. 995 (1997). Finally, Michigan's parole statutes also include economic considerations, which are a legitimate government interest. See Franciosi v. Michigan Parole Board, 586 N.W.2d 542, 546 (Mich.Ct.App. 1998) (holding that MICH. COMP. LAWS § 791.236(6), which prohibited attorneys from representing prisoners at parole release hearings, was rationally related to legitimate economic considerations), aff'd, 604 N.W.2d 675 (Mich. 2000).
Parole laws represent "the State's sensitive and difficult effort to encourage for its prisoners constructive future citizenship while avoiding the danger of releasing them prematurely upon society." McGinnis v. Royster, 410 U.S. 263, 269-70 (1973). Allowing prisoners to be reviewed for parole at specified intervals, while prohibiting them from appealing adverse decisions, is a rational attempt to balance these concerns. The state of Michigan could also rationally intend the limitation on appeal rights to provide a counter-balance to a prisoner's obvious but understandable incentive to litigate the issue of parole, as well as to protect the state treasury, from which funds will have to be expended in responding to appeals of parole denials. See Hadix, 230 F.3d at 845 (holding that § 803(d)(3) of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(d)(3), did not violate plaintiff's equal protection rights). Similarly, it is not irrational "for the state to avoid the expense and inconvenience of formal, adversarial type parole hearings." Johnson, 110 F.3d at 307 n. 11. Here, a tight fit exists between means and end, for prisoner appeals of parole denials are eliminated altogether. That other persons are permitted to appeal grants of parole does not detract from the rationality of the state's limitation.
"The States must have due flexibility in formulating parole procedures and addressing problems associated with confinement and release." Garner v. Jones, 529 U.S. 244, 251 (2000). "`The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.'" McGinnis, 410 U.S. at 270 (quoting Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913)). The Court concludes that with respect to the classification challenged by Petitioner, there exists a rational relationship to a legitimate state purpose in Michigan's legislative scheme prohibiting a prisoner from appealing a decision of the Michigan Parole Board to deny parole.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner's application pursuant to Rule 4 because it fails to present 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 anomolous" 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. 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." The Court finds that reasonable jurists could not find that this Court's dismissal of each 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.
JUDGMENT
In accordance with the Opinion entered this day:
IT IS ORDERED that Petitioner's application for habeas corpus relief be DISMISSED with prejudice pursuant to Rule 4 of the Rules Governing § 2254 Cases because Petitioner fails to present a meritorious federal claim.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED as to each issue raised by the Petitioner in this application for habeas corpus relief because Petitioner has failed to make a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2).