Emery v. Stewart et al

Filing 6

ORDER DISMISSING CASE Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NEIL D. EMERY,
Plaintiff,
v.
Case No. 14-11344
ANTHONY STEWART, Warden,
THOMAS COMBS, Chairman of Michigan
Parole Board, and DANIEL HEYNS,
M.D.O.C. Director,

Hon. Patrick J. Duggan

Defendants.

ORDER DISMISSING PETITIONER’S APPLICATION FOR WRIT OF
HABEAS CORPUS
Petitioner Neil D. Emery, presently confined at the Ryan Correctional
Facility, otherwise referred to as the Detroit Re-Entry Center, in Detroit, Michigan,
has filed two pro se petitions for writ of habeas corpus pursuant to 28 U.S.C. §
2241. Petitioner also filed a petition to proceed in forma pauperis, which was
granted by United States Magistrate Judge R. Steven Whalen. In both habeas
petitions, Petitioner challenges the Michigan Parole Board’s decision to require
that he participate in a residential treatment program for substance abusers before
he is eligible to be released from custody. After undertaking the review required
by Rule 4 of the Rules Governing Section 2254 Cases, the Court concludes that the

grounds raised by Petitioner in both habeas applications are meritless, such that
both petitions must be denied.
I.

BACKGROUND

In early 2011, Petitioner pled guilty to three narcotics charges, in violation
of Michigan Compiled Laws § 333.7401, in state court. The state court, located in
Roscommon County, Michigan, sentenced Petitioner on June 30, 2011 to a term of
imprisonment for two-and-a-half to twenty years. Petitioner first became eligible
for release on parole on November 23, 2013; on December 26, 2013, the Michigan
Parole Board authorized Petitioner’s release on parole, provided that he first
complete a residential treatment program for substance abusers at the Detroit ReEntry Center. Upon imposition of this condition, Petitioner was transferred to the
Detroit Re-Entry Center, where he currently resides.
Petitioner’s first habeas petition states that the Re-Entry Center has a higher
level of security than the prison from which he was transferred and that parolees,
parole violators, and level-two prisoners are not separated at the facility. He also
alleges that the Re-Entry Center is essentially a prison and that he has no yard
privileges, no job, and less food. Furthermore, Petitioner alleges that he has not
yet started the 180-day substance abuse program he is required to complete as a
condition of parole. Petitioner’s grounds for relief are: (1) the Parole Board has
deprived him of his right to liberty and due process of law by housing him in a
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level-two prison without providing him with the programming that he must
complete before he can be released; and (2) the Parole Board has subjected him to
cruel and unusual punishment under the Eighth Amendment by holding him
indefinitely with no indication of when he will be enrolled in the substance abuse
program or released from prison. He seeks to have his conditions of parole
modified and to be released from prison.
Petitioner filed a second habeas corpus petition on June 25, 2014. The
second petition alleges that: (1) the Michigan Department of Corrections
(“MDOC”) violated 28 U.S.C. § 3621(b) and the Ex Post Facto Clause by
retroactively applying a judicial decision and making community confinement in a
level-two facility a requirement for release; (2) the MDOC violated the Eighth
Amendment’s prohibition against cruel and unusual punishment by intimidating
and bullying Petitioner into signing a contract for placement at the Detroit ReEntry Center; (3) the Director of the MDOC, Daniel Heyns, and Michigan
Governor Rick Snyder violated 18 U.S.C. § 3621(b) by requiring community
confinement in a level-two prison; and (4) Director Heyns and Governor Snyder
violated the rulemaking provisions of the Administrative Procedures Act (“APA”),
codified at 5 U.S.C. § 553.1

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The Court notes that Governor Snyder is not a party to this lawsuit.
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II.

GOVERNING LEGAL STANDARD

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 of the Rules
Governing Section 2254 Cases;2 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. Rule 4 of the Rules Governing
Section 2254 Cases; 28 U.S.C. § 2243. 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).
III.
A.

ANALYSIS

Exhaustion of State Remedies
State prisoners are required to exhaust available state remedies before they

present their claims to a federal court in a habeas corpus petition. 28 U.S.C. §
2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731
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Rule 1 of the Rules Governing Section 2254 Cases delineates the scope and
applicability of the habeas corpus rules. Although habeas petitions filed pursuant
to § 2241 are not expressly covered by subsection (a), subsection (b) of the rule
provides that a “district court may apply any or all of these rules to a habeas corpus
petition not covered by Rule 1(a).” Rule 1(b) of the Rules Governing Section 2254
Cases.
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(1999); Nali v. Phillips, 681 F.3d 837, 851 (6th Cir. 2012), cert. denied, __ U.S.
__, 133 S. Ct. 535 (2012). This requirement is satisfied if a prisoner invokes “one
complete round of the State’s established appellate review process,” including a
petition for discretionary review in the state supreme court, “when that review is
part of the ordinary appellate review procedure in the State.” O’Sullivan, 526 U.S.
at 845, 847, at 119 S. Ct. at 1733. Thus, to be properly exhausted, each claim must
have been fairly presented to the state court of appeals and to the state supreme
court. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009). While “exhaustion
under § 2241 is not a statutory requirement . . . , ‘decisional law has superimposed
such a requirement in order to accommodate principles of federalism.’” Phillips v.
Ct. of Common Pleas, Hamilton Cnty., Ohio, 668 F.3d 804, 810 n.4 (6th Cir. 2012)
(quoting United States ex rel. Scranton v. New York, 532 F.2d 292, 294 (2d Cir.
1976)); Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir. 2006).
The petitions and corresponding exhibits demonstrate that Petitioner
challenged the Parole Board’s actions by filing a grievance. This grievance was
denied because prison grievance procedures may not be used to appeal parole
decisions. Petitioner also applied to the Parole Board for a commutation of his
sentence, but his petition was denied. He claims that he has no other state remedy
to exhaust. Petitioner is correct, as Michigan law does not permit a prisoner to
appeal an adverse decision by the Michigan Parole Board. Mich. Comp. Laws §
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791.234(11) (permitting crime victims and prosecutors to appeal the action of the
parole board in granting parole); Jackson v. Jamrog, 411 F.3d 615, 617-18 (6th
Cir. 2005) (discussing 1999 amendment to Michigan statute addressing parole and
noting that “Michigan law no longer authorizes state court review of parole board
decisions denying parole, while continuing to provide judicial review of the
granting of parole[]”). Because Michigan law explicitly forecloses Petitioner’s
ability to challenge the actions of the Parole Board, there is no “established
appellate review process” for him to invoke. O’Sullivan, 526 U.S. at 845, 847, at
119 S. Ct. at 1733. Given this “absence of available State corrective process[es,]”
Petitioner’s failure to exhaust prior to filing the instant habeas action is excusable.
28 U.S.C. § 2254(b)(1)(B)(i).
Further, even if this Court was able to conclude that Petitioner failed to
exhaust his state court remedies, an unexhausted claim may be addressed if without
merit, such that addressing the claim would be efficient and would not offend the
interest of federal-state comity. Matthews v. Abramajtys, 92 F. Supp. 2d 615, 628
(E.D. Mich. 2000), aff’d in part, rev’d on other grounds, 319 F.3d 780 (6th Cir.
2003); cf. 28 U.S.C. § 2254(b)(2) (permitting a federal court to deny a habeas
petition on the merits notwithstanding the applicant’s failure to exhaust state
remedies).
Accordingly, the Court now turns to the merits of Petitioner’s claims.
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B.

Merits of Claims Presented
Petitioner is not entitled to relief in this federal habeas corpus action as not a

single claim sets forth a legal theory cognizable on federal habeas review.
“Congress’s general grant of habeas authority to the federal courts appears in 28
U.S.C. § 2241, which extends the writ to, among others, persons ‘in custody in
violation of the Constitution or laws or treaties of the United States.’” Phillips,
668 F.3d at 809 (quoting 28 U.S.C. § 2241(c)(3)).
As an initial matter, to the extent that Petitioner challenges his conditions of
confinement, such as his lack of yard privileges and employment opportunities or
the fact that parolees are not separated from parole violators, such claims are not
cognizable on habeas review as there is no federal law or constitutional mandate
that such conditions exist. In other words, these conditions do not implicate the
legality of Petitioner’s confinement, and are therefore not pertinent to the Court’s
analysis.
Of greater import, the Due Process Clause of the Fourteenth Amendment
does not, of its own force, “guarantee an inmate a right to parole.” Marshall v.
Mitchell, 57 F.3d 671, 672 (8th Cir. 1995). Indeed, the Supreme Court of the
United States has definitively held that “[t]here is no constitutional or inherent
right of a convicted person to be conditionally released before the expiration of a
valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S.
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1, 7, 99 S. Ct. 2100, 2104 (1979); Gavin v. Wells, 914 F. 2d 97, 98 (6th Cir. 1990).
Prisoners also have no constitutional right to rehabilitative programs or to
placement in any particular institution within a state prison system even if a
transfer subjects the prisoner to substantially less favorable conditions. Moody v.
Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 279 n.9 (1976) (citation omitted).
Although the Due Process Clause does not independently protect a “life,
liberty, or property” interest in release on parole, the Supreme Court has held that a
convicted person may have a liberty interest created by a State’s laws. Ky. Dep’t
of Corrs. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908 (1989) (citation
omitted). If State law creates such an interest, the Due Process Clause protects
against unjustified interferences with that interest. In making the determination of
whether a liberty interest arises under the laws of a State such that the interest is
protected by the Fourteenth Amendment’s Due Process Clause, the Supreme Court
closely examines the language of the State’s relevant statutes and regulations. Id.
at 461, 109 S. Ct. at 1909. “Stated simply,” the Thompson Court explained, “a
State creates a protected liberty interest by placing substantive limitations on
official discretion.” Id. at 462, 109 S. Ct. at 1909 (internal quotation marks and
quotation omitted).
It is now well-established that because the Michigan Parole Board has broad
discretion in determining whether or not to grant parole, a prisoner does not have a
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protected liberty interest in being paroled prior to the expiration of his or her
sentence. See, e.g., Johnson v. Renico, 314 F. Supp. 2d 700, 713 (E.D. Mich.
2004); Mich. Comp. Laws § 791.234(11) (“[A] prisoner’s release on parole is
discretionary with the parole board.”). Because Petitioner has multiple years
remaining on his sentence, he has no right to be released from custody even though
the Michigan Parole Board has indicated that upon completion of the substance
abuse program at the Detroit Re-Entry Center, Petitioner may return to the
community. In other words, because Petitioner has no State-created liberty interest
in being released on parole, he is unable to show that his continued incarceration
pending successful completion of the substance abuse program is in derogation of
his federal constitutional or statutory rights. Petitioner has no legitimate statutory
or constitutional entitlement sufficient to invoke the protections of the Due Process
Clause. Put another way, because there was no deprivation of a protected liberty
interest, Petitioner’s due process claims lack merit.
Petitioner’s Eighth Amendment claims fare no better than his due process
claims because Petitioner has failed to show that he is being subjected to “wanton
and unnecessary infliction of pain,” or that the challenged conduct was “grossly
disproportionate to the severity of the crime warranting imprisonment[,]” as
determined by contemporary standards of decency. Rhodes v. Chapman, 452 U.S.
337, 347, 101 S. Ct. 2392, 2399 (1981). Requiring Petitioner to participate in
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substance abuse treatment as a prerequisite to release on parole is neither
impermissibly restrictive nor even harsh. Id. Petitioner alleges he was coerced
into signing an agreement for treatment at the Detroit Re-Entry Center by officials
who indicated if he did not sign, his parole would be revoked. Such allegations,
even if true, clearly do not fall within the purview of the Eighth Amendment’s
prohibition against “cruel and unusual punishments[.]” U.S. Const. amend. VIII.
To the extent that Petitioner is endeavoring to state a claim under the
Constitution’s Ex Post Facto Clause, U.S. Const. Art. I, § 10, cl. 1, this claim also
fails. Petitioner argues that MDOC retroactively applied a judicial decision that
had the effect of prolonging his imprisonment “past the period intended by my
sentencing judge by ignoring the settled sentence to impose a[n] undetermined
length of time post parole.” This argument defies logic, as the sentencing judge
imposed a sentence of two-and-a-half to twenty years on June 30, 2011. Thus, it is
simply beyond credence to suggest that Petitioner’s sentence has somehow been
impermissibly extended. More consequentially, retroactive applications of parole
guidelines or Parole Board policies do not implicate the Ex Post Facto Clause. In
Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715 (1990), the Supreme Court
explained that the Ex Post Facto Clause of the Constitution incorporated “a term of
art with an established meaning at the time of the framing of the Constitution.” Id.
at 41, 110 S. Ct. at 2719. Using this interpretation as a guide, the Court held that
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the Clause targets laws that “retroactively alter the definition of crimes or increase
the punishment for the criminal act.” Id. at 43, 110 S. Ct. at 2719 (ciations
omitted). Thus, to fall within the ex post facto prohibition, a law “must apply to
events occurring before its enactment” and it “must disadvantage the offender
affected by it.” Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964 (1981).
The Supreme Court has indeed noted that “[r]etroactive changes in laws governing
parole of prisoners, in some instances, may be violative of this precept.” Garner v.
Jones, 529 U.S. 244, 250, 120 S. Ct. 1362, 1367 (2000). It does not follow,
however, that every retroactive change in parole laws constitutes an ex post facto
violation. In fact, the Supreme Court previously observed that “the Ex Post Facto
Clause should not be employed for ‘the micromanagement of an endless array of
legislative adjustments to parole and sentencing procedures.’ . . . The States must
have due flexibility in formulating parole procedures and addressing problems
associated with confinement and release.” Id. at 252, 120 S. Ct. at 1368 (quotation
omitted). The controlling inquiry is therefore “whether retroactive application of
the change in . . . law created ‘a sufficient risk of increasing the measure of
punishment attached to the covered crimes.’” Id. at 250, 120 S. Ct. at 1367 (quotation
omitted).
Here, Petitioner does not point to any retroactive change in the law, but rather to
an allegedly retroactive change in how the Parole Board chooses to exercise its

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discretion. The imposition of a requirement that Petitioner complete substance abuse
treatment as a condition of release from incarceration – incarceration directly related to
Petitioner’s commission of several narcotics-related offenses – does not increase the
measure of punishment attached to Petitioner’s crime, as the state trial judge specifically
authorized a term of incarceration up to twenty years. In short, that the Parole Board, in
the exercise of its rather significant discretion, believed that completion of substance
abuse treatment would impact Petitioner’s suitability for parole is unrelated to whether
Petitioner is being detained in violation of the Constitution or federal law. Petitioner’s ex
post facto claim lacks merit.

Lastly, the Court rejects Petitioner’s claims under 18 U.S.C. § 3621(b)
(place of imprisonment) and 5 U.S.C. § 553 (rulemaking), because those
provisions of federal law do not pertain to state prisoners. To the extent that
Petitioner’s reference to the Parole Board’s violation of the APA is in actuality a
reference to Michigan’s Administrative Procedures Act, not the federal corollary,
such a claim is not cognizable. A state agency’s failure to abide by its own
policies or procedures does not amount to a constitutional violation. Coleman v.
Martin, 363 F. Supp. 2d 894, 903 (E.D. Mich. 2005).
IV.

CONCLUSION AND ORDER

For the reasons stated herein, the Court concludes that both habeas
applications fail to state viable claims under federal constitutional or statutory law
and that both are therefore subject to summary dismissal.
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Accordingly,
IT IS ORDERED that the petitions for writ of habeas corpus (ECF Nos. 1,
5) are DISMISSED.
Dated: October 7, 2014
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Neil Emery, # 443938
Ryan Correctional Facility
17600 Ryan Road
Detroit, MI 48212

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