BOYD v. RECKTENWALD

Filing 4

OPINION AND ORDER Dismissing 1 Petition for Writ of Habeas Corpus, filed by Anthony Boyd. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTHONY BOYD,
Case Number: 2:17-CV-13489
HONORABLE PAUL D. BORMAN

Petitioner,
v.
M. RECKTENWALD,
Respondent.
/

OPINION AND ORDER
DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Anthony Boyd filed this habeas corpus petition pursuant to 28
U.S.C. § 2241. Boyd states that the Michigan Department of Corrections lodged a
detainer against him in 2014 for an alleged parole violation. He argues that this
detainer makes him ineligible to participate in the Federal Bureau of Prisons’ drug
and alcohol program, and, consequently, ineligible for earning a reduction in his
sentence. He asks the Court to order the State of Michigan to conduct a parole
violation hearing.
Upon the filing of a habeas corpus petition, the court must promptly examine
the petition to determine “if it plainly appears from the face of the petition and any

exhibits annexed to it that the petitioner is not entitled to relief.” Rule 4, Rules
Governing Section 2254 Cases. If the court determines that the petitioner is not
entitled to relief, the court shall summarily dismiss the petition. McFarland v.
Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss
summarily any habeas petition that appears legally insufficient on its face”). The
Rules Governing Section 2254 cases may be applied at the discretion of the district
court judge to petitions under habeas statutes in addition to § 2254. Rule 1(b),
Rules Governing Section 2254 Cases. The habeas petition does not present
grounds which may establish the violation of a federal constitutional right. The
petition will be dismissed.
II.
Boyd is currently serving a term of incarceration of 70 months for attempted
possession with intent to distribute 500 grams or more of cocaine, a conviction
obtained in the United States District Court for the Southern District of Florida.
On May 27, 2014, the Michigan Department of Corrections lodged a detainer for
Boyd for violation of his parole in connection with a second-degree murder
conviction, Wayne County Case No. 93-09926. Boyd is ineligible for the BOP’s
residential drug and alcohol program until the detainer is lifted. He has twice
requested that the Michigan Department of Corrections conduct a parole violation
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hearing so that the detainer will be lifted. See Pet. at 8-10. The Michigan
Department of Corrections has advised Boyd that a parole violation hearing will
not be conducted until he has completed his federal sentence. Id. Boyd alleges
that the refusal to conduct a parole violation hearing until he completes his federal
sentence violates his rights under the Due Process Clause and his First Amendment
right to petition the government for redress of his grievances.
In Morrissey v. Brewer, 408 U.S. 471, 481-84 (1972), the Supreme Court
held that individuals threatened with the revocation of their parole possess a liberty
interest that entitles them to minimal due process protections. The Court outlined a
two-step process for preserving the minimum due process requirements for parole
revocation: a preliminary hearing and a final hearing. Id. The preliminary hearing,
which must be held “promptly” after a parolee is arrested and detained, is an
informal inquiry “to determine whether there is probable cause or reasonable
ground to believe that the arrested parolee has committed acts that would constitute
a violation of parole conditions.” Id. at 485. Following a preliminary hearing, the
second stage is a final revocation hearing. This hearing “must be the basis for
more than determining probable cause; it must lead to a final evaluation of any
contested relevant facts and consideration of whether the facts as determined
warrant revocation.” Id. at 488.
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Boyd contends that his due process rights were violated by the lodging of
the parole warrant as a detainer because he did not receive a timely parole
revocation hearing as required under Morrissey. A parole revocation hearing must
be held “within a reasonable time after [a petitioner] is taken into custody.” Id.
“Custody,” in the parole-violation detainer context, occurs only when State
authorities execute the underlying arrest warrant, which has not yet occurred in this
case. See Moody v. Daggett, 429 U.S. 78, 87 (1976). Michigan authorities may
defer the warrant’s execution until after Boyd’s federal sentence expires. See, e.g.,
Moody, 429 U.S. at 87-88; see also Davis v. Stine, 2006 WL 1050069, at *3 (E.D.
Ky. April 20, 2006) (“There is nothing impermissible in waiting until a parole or
probation violator is released from [another jurisdiction’s] custody before holding
revocation proceedings.”). Because Boyd has not, as yet, been arrested pursuant to
the parole violator’s warrant, his due process rights under Morrissey have not
vested. See Moody, 429 U.S. at 86-87.
Moreover, because Boyd’s federal conviction by guilty plea provides
irrefutable evidence of a parole violation, Morrissey’s protections may never come
into play. Cf. Sneed v. Donahue, 993 F.2d 1239, 1241 (6th Cir. 1993) (because
parole decision maker had no discretion but to revoke parole on the basis of a
subsequent conviction, Morrissey did not apply).
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Boyd’s First Amendment claim is also meritless. The First Amendment
provides that Congress shall make no law abridging “the right of the people ... to
petition the Government for redress of grievances.” U.S. Const. amend I. The
right to petition the government for redress of grievances is “cut from the same
cloth” as the other guarantees in the First Amendment, and it is “an assurance of a
particular freedom of expression.” McDonald v. Smith, 472 U.S. 479, 482 (1985).
The purpose of the right to petition is to guarantee that people “may communicate
their will” through direct petitions to government officials and the legislature.
McDonald, 472 U.S. at 482. But the right to petition the government does not
“guarantee ... the right to compel government officials to act on or adopt a citizen’s
views.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999). Boyd exercised his
right to petition by twice requesting that the Michigan Parole Board conduct a
parole revocation hearing. The exercise of that right did not create an obligation
for the Parole Board to respond in a particular way, or at all. Boyd’s rights under
the First Amendment were not violated.
III.

Conclusion
Accordingly, the Court DISMISSES the petition for a writ of habeas corpus.

Before Petitioner may appeal the Court’s decision, a certificate of appealability
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(COA) must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A COA
may issue only if the petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial showing threshold is
met if the petitioner demonstrates that reasonable jurists would find the court’s
assessment of the claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). Jurists of reason would not find the Court’s decision debatable. Accordingly,
the Court DENIES a certificate of appealability.
SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 30, 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 30, 2018.

s/Deborah Tofil
Case Manager

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