Opinion
Case Number: 00-72479
July 9, 2001
Petitioner Michael Bickley filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is incarcerated in violation of his constitutional rights. On May 21, 2001, the Court issued an Opinion and Order Denying Petition for Writ of Habeas Corpus. Petitioner now seeks a certificate of appealability so that he may appeal this Court's denial of his habeas corpus petition.
Before Petitioner may appeal the Court's dispositive decision denying his petition, a certificate of appealability must issue. 28 U.S.C. § 2253 (c)(1)(A); Fed.R.App.P. 22(b). The Court must either issue a certificate of appealability indicating which issues satisfy the required showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253 (c)(3); Fed.R.App.P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). The substantial showing threshold is satisfied when a petitioner demonstrates "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000).
In his petition for a writ of habeas corpus, Petitioner presented the following claims:
I. Petitioner was improperly denied parole where the parole board failed to consider "pertinent" information relative to the notice of intent pursuant to M.C.L. 791.235(5); M.S.A. 28.2305(5) in violation of due process, liberty interest, and equal protection of the U.S. Const. Amends. 5 and 14, § 1 (fair hearing).
II. The decision of the parole board was based on inaccurate information not supported by competent material and substantial evidence in violation of due process, liberty interest, and equal protection of the U.S. Const. Amends. 5 and 14.
III. The parole board authorities improperly departed from the parole guideline score of high probability without substantial and compelling reasons denying parole in violation of due process, liberty interest and equal protection of the U.S. Const. Amends. 5 and 14.
IV. The decision to deny parole were based on reasons already considered by parole guidelines of high probability constitute an abuse of discretion in violation of due process, liberty interest and equal protection of the U.S. Const. Amends. 5 and 14.
V. Petitioner's denial of parole was based on offense driven factors instead of institutional variables was an abuse of discretion in violation of due process, liberty interest and equal protection of the U.S. Const. Amends. 5 and 14, § 1.
VI. Petitioner's denial of parole was an absorption of authority superseding sentencing judge's sentence while forfeiting earned disciplinary credits without a hearing in violation of due process, liberty interest, and equal protection of the U.S. Const. Amends. 5 and 14, § 1.
VII. Recent legislation adopted by Michigan state legislators does not allow prisoners to appeal Michigan parole board decisions, does create a depressed class of citizens and is purposely discriminatory in violation of Michigan's Const. of 1963, Art. 1, § 2; and the U.S. Const. Amend. XIV.
VIII. The cumulative effects of improprieties combined violations denied Petitioner's due process, liberty interest, and equal protections rights in violation of the U.S. Const. Amends. 5 and 14.
IX. Reasons for granting writ.
Petitioner claimed that the parole board's decision to deny him parole violated his right to due process because, in reaching its decision, the parole board: (i) failed to consider pertinent information; (ii) based its decision on inaccurate information; (iii) departed from the parole guideline score without substantial and compelling reasons; (iv) considered offense driven factors rather than institutional behavior; and (v) superseded the sentencing judge's sentence. Petitioner argued that each of the foregoing violated his due process rights and that even if each error, taken by itself, did not violate due process, the cumulative effect of these errors violated his right to due process. This Court held that because there exists no state-created liberty interest in being paroled, Petitioner failed to state a claim upon which habeas corpus relief could be granted with respect to his due process claims. Petitioner has failed to establish that reasonable jurists would find this Court's assessment of Petitioner's foregoing habeas corpus claims was debatable or wrong. Therefore, he is not entitled to a certificate of appealability with respect to his due process claims.
Petitioner also claimed that his rights under the Equal Protection Clause were violated because, pursuant to Mich. Comp. Laws 791.234(9), a prisoner may not appeal to Michigan state courts the Michigan Parole Board's decision to deny parole, but a prosecutor or victim may appeal a decision to grant parole. This Court held that because Petitioner is not similarly situated to prosecutors or victims, he failed to establish a violation of the Equal Protection Clause. The Court determines that Petitioner has made a substantial showing of the denial of a constitutional right with respect to his Equal Protection claim.
Accordingly, IT IS ORDERED that a certificate of appealability is GRANTED with respect to Petitioner's claim that his rights under the Equal Protection Clause were violated. Petitioner's request for a certificate of appealability is DENIED with respect to Petitioner's remaining claims.
IT IS FURTHER ORDERED that Petitioner's request to proceed on appeal in forma pauperis is GRANTED.