Sheppard v. Michigan Parole Board et al
Filing
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OPINION and ORDER Denying the Petition for a Writ of Habeas Corpus, Severing and Dismissing Civil Rights Claims, Denying a Certificate of Appealability, and Denying Leave to proceed in Forma Pauperis on Appeal. Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DEREK SHEPPARD,
Petitioner,
Civil No. 16-cv-12257
Honorable Thomas L. Ludington
v.
MICHIGAN PAROLE BD., et al.,
Respondents.
____________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS, SEVERING AND DISMISSING CIVIL RIGHTS CLAIMS,
DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Derek Sheppard (“Petitioner”), a state prisoner currently confined at the Central
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. § 22411 asserting that he is being held in violation of his
constitutional rights. Petitioner is currently serving sentences for his Oakland County Circuit
Court plea-based convictions for possession of a controlled substance (2–15 years imposed in
2003), receiving and concealing stolen property - motor vehicle (1–10 years imposed in 2006),
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Although Petitioner seeks to proceed under 28 U.S.C. § 2241, the Court notes that the exclusive
remedy for a state prisoner seeking federal habeas relief is 28 U.S.C. § 2254. See Rittenberry v.
Morgan, 468 F.3d 331, 337 (6th Cir. 2006) (“numerous federal decisions . . . support the view
that all petitions filed on behalf of persons in custody pursuant to state court judgments are filed
under section 2254” and are subject to the requirements of the AEDPA); Greene v. Tennessee
Dep’t of Corr., 265 F.3d 369, 371 (6th Cir. 2001) (when a state prisoner seeks habeas relief, but
does not directly or indirectly challenge a state court conviction or sentence, the requirements of
§ 2254 apply no matter what statutory label is used because the detention arises from a state
court process). In any event, the Court’s analysis is the same under either provision.
and larceny from a motor vehicle (1–20 years imposed in 2008). See Offender Profile, Michigan
Offender
Tracking
Information
http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=300877.
System,
In his pleadings,
Petitioner does not challenge his state court convictions or the conditions of his confinement.
Rather, he asserts that the Michigan Parole Board has improperly denied him parole. He seeks
release from custody and an order for the defendants to cease and desist unconstitutional
practices.
I.
A.
Promptly after the filing of a habeas petition, 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 also 28 U.S.C. § 2243. If, after preliminary consideration,
the Court determines that the petitioner is not entitled to relief, the Court must summarily dismiss
the petition. Id.; Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has duty to
“screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes petitions
which raise legally frivolous claims, as well as those containing factual allegations that are
palpably incredible or false. See 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 denied.
In order to demonstrate that he is entitled to habeas relief, Petitioner must show that he is
“in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
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§§ 2241(c)(3); 2254(a). In challenging the Michigan Parole Board’s denial of parole, Petitioner
alleges violations of his due process rights under the Fourteenth Amendment.
The United States Supreme Court has definitively held that there is no right under the
United States Constitution of a lawfully convicted person to be conditionally released before the
expiration of a valid sentence. Greenholtz v. Inmates of Nebraska Penal and Corr. Complex,
442 U.S. 1, 7 (1979); see also Kentucky Dep’t. of Corr. v. Thompson, 490 U.S. 454, 460 (1989).
Simply stated, there is no federal constitutional right to parole. Gavin v. Wells, 914 F.2d 97, 98
(6th Cir. 1990). Moreover, the Michigan courts have held that a liberty interest in parole does
not arise under Michigan law. See Hurst v. Department of Corr. Parole Bd., 119 Mich. App. 25,
29, 325 N.W.2d 615, 617 (1982) (ruling that state law “creates only a hope of early release,”
rather than a right to release); see also Glover v. Michigan Parole Bd., 460 Mich. 511, 520–21,
596 N.W.2d 598, 603–04 (1999). The United States Court of Appeals for the Sixth Circuit has
consistently ruled that Michigan’s statutory parole scheme does not create a liberty interest in
parole. See Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc); Crump v.
Lafler, 657 F.3d 393, 404 (6th Cir. 2011); Foster v. Booker, 595 F.3d 353, 368 (6th Cir. 2010);
Caldwell v. McNutt, 158 F. App’x 739, 740-41 (6th Cir. 2006); Ward v. Stegall, 93 F. App’x
805, 806 (6th Cir. 2004); Bullock v. McGinnis, 5 F. App’x 340, 342 (6th Cir. 2001). Petitioner
thus has no reasonable expectation of, or protected interest in, release from custody until he has
served his full sentences. Because Petitioner has no protected liberty interest in parole, he cannot
establish that the Michigan Parole Board’s decision denying him parole violated his
constitutional rights. Additionally, Petitioner has not shown that he is being held beyond the
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expiration of his sentences. He thus fails to state a claim upon which federal habeas relief may
be granted in his pleadings. Habeas relief is not warranted.
B.
A prisoner who does not seek immediate release on parole may challenge the procedures
used by a parole board to deny him parole under 42 U.S.C. § 1983 after the exhaustion of
available state remedies. Wilkinson v. Dotson, 544 U.S. 74, 83 (2005); see also Thomas v. Eby,
481 F.3d 434, 439–40 (6th Cir. 2007) (plaintiff’s challenge to parole procedures may proceed
under § 1983 because it does not automatically imply a shorter sentence). In this case, Petitioner
seems to challenge the parole procedures, as well as the parole decision itself, even though he
seeks release from custody and does not specifically request a new parole hearing. In any event,
to the extent that he wishes to pursue claims challenging the parole procedures, he must bring
them in a properly filed civil rights action. The requirements for pursuing a civil rights action in
federal court differ from those in a habeas proceeding, including the payment of a $350.00 filing
fee and a $50.00 administrative fee for a civil rights action versus a $5.00 filing fee for a habeas
action. Petitioner may not circumvent those requirements by filing a joint or hybrid action.
Accordingly, the Court shall sever and dismiss without prejudice Petitioner’s potential civil
rights claims. The Court makes no determination as to the merits of those claims.
II.
For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas
relief on his claims and the habeas petition must be denied. The Court also concludes that
Petitioner’s potential civil rights claims challenging the parole procedures should be severed and
dismissed without prejudice.
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Before Petitioner may appeal the Court’s decision, a certificate of appealability must be
issued. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). When a court denies relief on the merits, the substantial showing
threshold is met if the petitioner demonstrates that reasonable jurists would find the district
court’s assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S.
473, 484 (2000). “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). When a court denies relief on procedural
grounds without addressing the merits, a certificate of appealability should be issued if it is
shown that jurists of reason would find it debatable whether the petitioner states a valid claim of
the denial of a constitutional right and that jurists of reason would find it debatable whether the
court was correct in its procedural ruling. Slack, 529 U.S. at 484–85. The Court concludes that
Petitioner has not made a substantial showing of the denial of a constitutional right as to his
habeas claims and that jurists of reason would not find the Court’s procedural ruling as to the
civil rights claims debatable. A certificate of appealability is not warranted. The Court further
concludes that Petitioner should not be granted leave to proceed in forma pauperis on appeal as
an appeal cannot be taken in good faith. See Fed. R. App. P. 24(a).
III.
Accordingly, it is ORDERED that Sheppard’s petition for a writ of habeas corpus, ECF
No. 1, is DENIED and DISMISSED with prejudice.
It is further ORDERED that Sheppard’s civil rights claims are SEVERED and
DISMISSED without prejudice.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that leave to proceed in forma pauperis on appeal is DENIED.
Dated: September 26, 2016
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 26, 2016.
s/Kelly Winslow for
MICHAEL A. SIAN, Case Manager
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