Libby v. Klee

Filing 18

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and denying Certificate of Appealability. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SCOTT LIBBY,
Case Number: 2:16-CV-14319

Petitioner,

HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

v.
PAUL KLEE,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Scott Libby
(Petitioner) is a state inmate currently incarcerated at the Central Michigan
Correctional Facility in St. Louis, Michigan. Petitioner argues that his parole was
revoked in violation of his right to due process and that his no contest plea to
several parole violation charges was involuntary because he received ineffective
assistance of counsel. The Court will deny the petition because the claims are
meritless. The Court will also deny Petitioner a certificate of appealability.
I. Background
Petitioner was convicted in Wayne County Circuit Court of second-degree
murder, Mich. Comp. Laws § 750.317, assault with intent to murder, Mich. Comp.

Laws § 750.83, and possession of a firearm during the commission of a felony.
Mich. Comp. Laws § 750.227b. He was sentenced to concurrent sentences of 25 to
50 years for the second-degree murder conviction and 15 to 30 years for the assault
with intent to murder conviction, to be served consecutively to two years
imprisonment for the felony-firearm conviction. In September 2014, Petitioner
was released on parole.
On August 16, 2016, police received a report that Petitioner was involved in
an armed robbery in Chelsea, Michigan, and a parole violation warrant was issued
for Petitioner. See 8/17/2016 Parole Violation Report at 2; ECF No. 17-1, Pg. ID
185. Authorities were unable to locate him. Id. On August 29, 2016, Petitioner
surrendered to City of Farmington Police. When he surrendered, he was in
possession of heroin. See 9/6/2016 Parole Violation Report at 2-3; ECF No. 17-1,
Pg. ID 177-78. Petitioner stated that he did not willingly use heroin, but a bomb
had been strapped to him and he had been forced to use heroin to “give up
information on some drug dealers.” Id. at 3, Pg. ID 178. He admitted to using
cocaine. Id.
Petitioner was charged with six parole violations. He pleaded guilty to
associating with a known felon, and no contest to being in possession of heroin and
associating with an individual who was involved in unlawful activity. See Parole
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Board Notice of Action, ECF No. 17-1, Pg. ID 160. The remaining charges were
dismissed. Id. Petitioner did not appeal the revocation of his parole.
Petitioner then filed the pending habeas corpus petition. He raises these
claims:
I.

The Michigan Parole Board violated Due Process Clause guarantees.

II.

Due process violation of plea agreement.

III.

Petitioner was deprived of his constitutional right to effective
assistance of counsel.

IV.

Petitioner’s Due Process Clause rights were violated when the parole
board rejected the hearing officer’s factual basis for Petitioner’s plea
and substituted its own findings.
II. Legal Standard

28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceedings.
28 U.S.C. § 2254(d).
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“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court
cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different from
[this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam),
quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000). “[T]he ‘unreasonable
application’ prong of the statute permits a federal habeas court to ‘grant the writ if
the state court identifies the correct governing legal principle from [the Supreme]
Court but unreasonably applies that principle to the facts’ of petitioner’s case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003), quoting Williams, 529 U.S. at 413.
However, “[i]n order for a federal court find a state court’s application of [Supreme
Court] precedent ‘unreasonable,’ the state court’s decision must have been more
than incorrect or erroneous. The state court’s application must have been
‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations omitted); see
also Williams, 529 U.S. at 409. “A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’
on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“Section 2254(d) reflects the view that habeas corpus is a guard against extreme
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malfunctions in the state criminal justice systems, not a substitute for ordinary
error correction through appeal. . . . As a condition for obtaining habeas corpus
from a federal court, a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington, 562 U.S. at 103 (internal quotation
omitted).
Section 2254(d)(1) limits a federal habeas court’s review to a determination
of whether the state court’s decision comports with clearly established federal law
as determined by the Supreme Court at the time the state court renders its decision.
See Williams, 529 U.S. at 412. Section 2254(d) “does not require citation of
[Supreme Court] cases – indeed, it does not even require awareness of [Supreme
Court] cases, so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (emphasis in
original).
Lastly, a federal habeas court must presume the correctness of state court
factual determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this
presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d
358, 360-61 (6th Cir. 1998).
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III. Discussion
Petitioner’s first, second, and fourth claims for habeas relief allege that the
Michigan Parole Board’s October 2016 decision to revoke parole violated the Due
Process Clause. His third claim alleges that his attorney rendered ineffective
assistance during the parole violation process.
Due process protections apply to parole revocation proceedings. See
Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Parole revocation proceedings,
however, do not afford parolees the “full panoply of rights” afforded criminal
defendants at criminal trials. Id. at 480. This is so because parole revocation
deprives the parolee “not of the absolute liberty to which every citizen is entitled,
but only of the conditional liberty properly dependent” on compliance with the
terms of parole. Id. at 480. In Morrissey, the Court announced that the minimum
requirements of due process in relation to a parole revocation hearing are:
(a) written notice of the claimed violations of parole; (b) disclosure to
the parolee of evidence against him; (c) opportunity to be heard in
person and to present witnesses and documentary evidence; (d) the
right to confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing
confrontation); (e) a ‘neutral and detached’ hearing body such as a
traditional parole board, members of which need not be judicial
officers or lawyers; and (f) a written statement by the factfinders as to
the evidence relied on and reasons for revoking parole.
Id. at 489.
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Petitioner’s claims fail to allege a violation of any of the enumerated
Morrissey requirements. Instead, Petitioner argues that his due process rights were
violated when the parole board failed to comply with the terms of his plea
agreement. Petitioner states that he entered into a plea agreement whereby he
would plead no contest to two charges (he previously pleaded guilty to the heroin
charge at his arraignment), in exchange for the dismissal of the remaining charges.
He claims that, as part of the plea agreement, the parole board specialist agreed to
recommend reparole in 6-months, with the possibility of a 12-month reparole.
Instead, Petitioner was given a 24-month continuance. He argues that the 24month continuance was improperly based upon the dismissed charges. Petitioner
further claims that the parole board failed to rely upon the factual findings and
recommendations of the parole hearings officer when it ordered a 24-month
continuance.
Petitioner pleaded guilty or no contest to three parole violations. He knew
his parole would be revoked but hoped that the parole board would schedule a
parole reconsideration date in 6-months. The plea agreement memorialized in the
Parole Board Notice of Action states that the Michigan Department of Corrections
Office of Field Programs (OFP) would “recommend a 6 Month reparole.” (ECF
No. 17-1, Pg. ID 161) (emphasis supplied). Petitioner identifies nothing in the
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record which would support a finding that he was guaranteed a 6-month reparole.
The Michigan Parole Board decision indicates it issued a 24-month continuance
because the board lacked reasonable assurance that Petitioner would not become a
menace to society or the public safety. Id. While Petitioner may have been
disappointed that the parole board did not comply with the OFP’s recommendation,
this does not rise to a due process violation. In addition, even assuming that the
parole board relied upon dismissed parole violation charges in setting a 24-month
continuance, the parole board did not violate due process by considering dismissed
charges. See Villarreal v. United States Parole Comm’n, 985 F.2d 835, 839 (5th
Cir. 1993) (holding that the parole commission may consider dismissed charges
when considering whether to revoke parole); Whitehead v. United States Parole
Comm’n, 755 F.2d 1536, 1537 (11th Cir. 1985) (per curiam) (“[E]ven if there had
been an acquittal on the criminal charge, the conduct can be the basis of the parole
revocation.... [T]he Commission need only determine that a preponderance of the
evidence supports the parole violation....”); Mullen v. United States Parole
Comm’n, 756 F.2d 74, 75 (8th Cir. 1985) (holding dismissal of criminal charges
for “lack of prosecutorial merit” did not bar independent fact-finding by the parole
commission). Finally, Morrissey’s due process protections do not require a parole
board to rely upon the factual findings and recommendations of the parole hearings
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officer. The state court record clearly demonstrates that Petitioner was afforded
the minimum due process protections outlined in Morrissey prior to revocation of
his probation. Habeas relief is denied on these claims.
Petitioner also seeks habeas relief on the ground that his attorney rendered
ineffective assistance at his parole revocation proceeding, rendering his plea
involuntary. The United States Supreme Court has never held state prisoners have
a federal constitutional right to counsel at parole hearings. See, e.g., Pennsylvania
v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to appointed counsel extends to
the first appeal of right, and no further.”); Gagnon v. Scarpelli, 411 U.S. 778, 790
(1973) (rejecting “inflexible” constitutional requirement that counsel be appointed
in all probation or parole revocation hearings). Because there is no federal
constitutional right to counsel at parole hearings, there is no Sixth Amendment
right to the effective assistance of counsel at the hearings. See Coleman v.
Thompson, 501 U.S. 722, 752 (1991) (holding petitioner cannot claim
constitutionally ineffective assistance of counsel where there is no underlying
constitutional right to counsel). Therefore, Petitioner’s ineffective assistance of
counsel claim fails.

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IV. Petitioner’s Motions
Petitioner has four motions presently pending before the Court: “Motion to
Modify the Order Requiring Responsive Pleading to be Filed with 180 Days” (ECF
No. 8), “Motion for Summary Judgment” (ECF No. 12), “Motion for Declaratory
Judgment” (ECF No. 13), and “Motion for Stipulation for Consent Judgment”
(ECF No. 14). These motions are rendered moot by the Court’s denial of the
petition and will be denied as such.
V. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not
proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. §
2253. Rule 11 of the Rules Governing Section 2254 Proceedings now requires that
the court “must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.”
A COA 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, 484 (2000).
In this case, the Court concludes that reasonable jurists would not debate the
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Court’s conclusion that the claims in the habeas petition do not warrant relief.
Therefore, the Court denies a certificate of appealability.
VI. Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus and a
certificate of appealability are DENIED.
Petitioner’s “Motion to Modify the Order Requiring Responsive Pleading to
be Filed with 180 Days” (ECF No. 8), “Motion for Summary Judgment” (ECF No.
12), “Motion for Declaratory Judgment” (ECF No. 13), and “Motion for
Stipulation for Consent Judgment” (ECF No. 14) are DENIED AS MOOT.
SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 12, 2018
CERTIFICATE 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
March 12, 2018.

s/Deborah Tofil
Case Manager
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