Jacobson v. Napel

Filing 6

OPINION and ORDER (1) Summarily Dismissing the 1 Petition for Writ of Habeas Corpus, (2) Declining to Issue a Certificate of Appealability, and (3) Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRAD JACOBSON,
Petitioner,

Case No. 17-cv-10155
Hon. Matthew F. Leitman

v.
ROBERT NAPEL and the
MICHIGAN PAROLE BOARD,
Respondents.
__________________________________/
OPINION AND ORDER (1) SUMMARILY DISMISSING THE
PETITION FOR WRIT OF HABEAS CORPUS (ECF #1), (2) DECLINING
TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (3) DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I
On January 17, 2017, Petitioner Brad Jacobson (“Jacobson”) filed a pro se
petition for a writ of habeas corpus (“the Petition”). (See ECF #1.) The Petition
challenges the Michigan Parole Board’s decision not to release Jacobson on parole.
Jacobson seeks federal habeas relief on grounds that: (1) the Parole Board violated
his double jeopardy rights by denying him release on parole (a) for reasons that were
taken into account at sentencing and (b) based, in part, on his prior criminal
conviction; and (2) the Parole Board breached his plea and sentencing agreement.
The Court has determined, for reasons given below, that the Parole Board did not

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violate Petitioner’s constitutional rights when it declined to release Petitioner on
parole. Accordingly, the Court will DISMISS the Petition.
II
The Petition and exhibits indicate that, in 2014, Jacobson pleaded guilty in
Shiawassee County, Michigan to unlawful driving away an automobile (“UDAA”),
Mich. Comp. Laws § 750.414. Jacobson contends that entered his plea pursuant to
a plea agreement that called for a sentence of between eighteen months and fifteen
years in prison. On February 21, 2014, the state trial court sentenced Jacobson as a
habitual offender1 to imprisonment for eighteen months to fifteen years. In 2015
and 2016, the Parole Board declined to release Jacobson on parole. Thereafter,
Jacobson attempted to obtain habeas corpus relief in state court, but the state courts
denied or rejected his petitions. Jacobson commenced this action on January 17,
2017. He seeks immediate and unconditional release from prison.
III
Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts “provides that district courts ‘must promptly examine’ state prisoner
habeas petitions and must dismiss the petition ‘[i]f it plainly appears . . . that the
petitioner is not entitled to relief.’” Day v. McDonough, 547 U.S. 198, 207 (2006)

1

Jacobson’s criminal history includes prior convictions for second-degree home
invasion, UDAA, and attempted criminal sexual conduct in the third degree. See
Pet. at page IV.
2

(quoting Rule 4). To obtain habeas relief from a federal court, a state prisoner must
demonstrate that he “is in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. §§ 2241(c)(3) and 2254(a).
A
Jacobson’s first claim alleges that the Parole Board unconstitutionally relied
on the nature of his crime, his past crimes, and his personal history to deny him
release on parole. Jacobson contends that the Parole Board’s reliance on these
factors violated his right to due process and his right not to be placed in double
jeopardy.
1
Jacobson’s double jeopardy claim lacks merit because “parole determinations
are not considered criminal punishment for the purposes of the Double Jeopardy
Clause.” Ellick v. Perez, 27 F. App’x 489, 490 (6th Cir. 2001) (citing Kell v. United
States Parole Comm’n, 26 F.3d 1016, 1020 (10th Cir. 1994)). Thus, Double
Jeopardy Clause does not apply to parole proceedings. Sand v. Bogan, 21 F.3d 428,
1994 WL 112862, at *2 (6th Cir. 1994) (unpublished opinion citing Alessi v.
Quinlan, 711 F.2d 497, 501 (2d Cir. 1983)). The denial of parole here did not violate
Jacobson’s rights under the Double Jeopardy Clause. See Mayrides v. Chaudhry, 43
F. App’x 743, 745 (6th Cir. 2002) (rejecting similar double jeopardy claim).

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2
To prevail on his due process claim, Jacobson “must allege that a protected
property or liberty interest was violated.” Wershe v. Combs, 763 F.3d 500, 506 (6th
Cir. 2014). The interest implicated here is a liberty interest, but the Supreme Court
has stated 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 Nebraska Penal and Corr. Complex, 442 U.S. 1, 7 (1979). “The Supreme
Court has made it clear that a mere unilateral hope or expectation of release on parole
is not enough to constitute a protected liberty interest; the prisoner ‘must, instead,
have a legitimate claim of entitlement to it.’ ” Inmates of Orient Corr. Inst. v. Ohio
State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991) (quoting Greenholtz,
442 U.S. at 7) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972))
(emphasis added in Inmates of Orient Corr. Inst.).
Such a claim of entitlement to parole “can be created only by the operation of
state law.” Crump v. Lafler, 657 F.3d 393, 397 (6th Cir. 2011) (citing Inmates of
Orient Inst., 929 F.2d at 235). The question then is whether under state law Jacobson
“had ‘a legitimate claim of entitlement to’ parole, rather than ‘an abstract need or
desire for it.’ ” Id. at 399 (quoting Greenholtz, 442 U.S. at 7) (quoting Roth, 408
U.S. at 577).

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“Michigan’s parole system creates no legitimate claim of entitlement to
parole, and thus no liberty interest in parole.” Wershe, 763 F.3d at 506 (quotation
marks omitted); see also Crump, 657 F.3d at 404 (same). “[A]nd where there is no
life, liberty, or property interest, there is no due process protection.” Sova v. Holder,
451 F. App’x 543, 547 (6th Cir. 2011) (citing Patel v. Gonzales, 470 F.3d 216, 220
(6th Cir. 2006)). Thus, Petitioner’s due process claim lacks merit.
B
Jacobson’s final claim alleges that the Parole Board breached his plea and
sentencing agreement to serve a sentence of eighteen months to fifteen years in
prison. While it is true that “[p]lea agreements are contractual in nature,” United
States v. Moncivais, 492 F.3d 652, 662 (6th Cir. 2007), Petitioner has failed to show
any breach. He has not served more time than he bargained for. He did not bargain
to serve only the minimum; he bargained for a sentence of no more than fifteen years,
and he has not yet served more time than that. Thus, his breach of contract claim
fails.
IV
Jacobson has failed to show that he “is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. §§ 2241(c)(3) and
2254(a). Accordingly, IT IS HEREBY ORDERED that the Petition is summarily

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DISMISSED pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts.
V
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may issue “only
if the applicant has made a substantial showing of the denial of a constitutional
right.”

28 U.S.C. § 2253(c)(2).

“A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327.
Jacobson’s claims have no basis in federal constitutional law. Consequently,
reasonable jurists would not disagree with the Court’s resolution of the Petition, nor
conclude that the issues deserve encouragement to proceed further. Accordingly, IT
IS HEREBY ORDERED that a certificate of appealability is DENIED.

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IT IS FURTHER ORDERED that if Jacobson appeals this Court’s decision,
he may not proceed in forma pauperis on appeal. Although he was granted in forma
pauperis status in this Court, an appeal would be frivolous and could not be taken in
good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A).

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: April 10, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on April 10, 2017, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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