LaPine v. Michigan Parole Board et al

Filing 5

OPINION and ORDER Dismissing the Habeas Petition, Declining to Issue a Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARRIN LaPINE,
Petitioner,
Civil Case No. 18-10516
Honorable Linda v. Parker

v.
MICHIGAN PAROLE BOARD
and WARDEN OF [THE] ST. LOUIS
[CORRECTIONAL FACILITY],
Respondent.
______________________________________/

OPINION AND ORDER DISMISSING THE HABEAS PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This matter has come before the Court on a pro se petition for the writ of
habeas corpus under 28 U.S.C. § 2241. Michigan prisoner Darrin LaPine
(“Petitioner”) challenges the Michigan Parole Board’s recent decision to deny him
release on parole. Petitioner claims that the Parole Board’s decision violated his
right to substantive due process and was arbitrary and capricious.
Petitioner has no legitimate claim of entitlement to parole under state or
federal law, and he has failed to show that the Parole Board’s decision was
arbitrary and capricious. Therefore, his due process claim lacks merit, and his
petition must be dismissed.

I. Background
Petitioner alleges that he was interviewed during parole hearings held on
January 9, 2018, and on January 16, 2018. He asserts that he did not receive
proper notice of the hearings and that, after the hearings, he was denied release on
parole for twelve months. According to him, the order denying him release on
parole falsely stated that he minimized his behavior; he was not amenable to
treatment; he was terminated from a program for poor performance or for
disciplinary reasons; and that he blamed staff or other people for the program’s
failure. The report concluded by stating that Petitioner blamed others for his
conduct and that he needed to request Bridges (a domestic violence program) when
he was ready to successfully complete the program.
Petitioner contends that his interviewer failed to realize he was not eligible
for Bridges. Petitioner also contends that the interviewer gave no consideration to
his release on parole in 2015 and the fact that his parole was revoked for egregious
reasons. Additionally, Petitioner alleges that the denial of parole was retaliation
for another habeas petition that challenges the parole revocation proceeding. He
concludes that the Parole Board’s decision to deny him release on parole was
unreasonable, arbitrary, and capricious. He also claims that the Parole Board relied
on false information and violated his right to substantive due process.

II. Discussion
Under Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts, district courts must promptly examine a state prisoner’s
habeas petition and dismiss the petition if it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to relief. Day v.
McDonough, 547 U.S. 198, 207 (2006).1 When, as here, no state court has
adjudicated the petitioner’s claims on the merits, this Court’s review is de novo.
Crump v. Lafler, 657 F.3d 393, 397 (6th Cir. 2011). To obtain habeas relief,
Petitioner 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).
Petitioner is alleging a violation of his constitutional right to due process of
law. Under the Fourteenth Amendment to the United States Constitution, no State
shall “deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV. To prevail on his due process claim, Petitioner must
demonstrate that a protected property or liberty interest was violated. Wershe v.
Combs, 763 F.3d 500, 506 (6th Cir. 2014). “When an inmate asserts a right to
parole premised upon substantive due process, as here, the claim involves a
purported liberty interest.” Bell v. Anderson, 301 F. App’x 459, 461 (6th Cir.
1

The Court may apply the Rules Governing Section 2254 Cases to a petition that
was not filed under § 2254. See Rule 1(b).

2008) (citing Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929
F.2d 233, 235 (6th Cir. 1991)).
The Supreme Court stated in Greenholtz v. Inmates of Nebraska Penal and
Corr. Complex, 442 U.S. 1 (1979), that “[t]here is no constitutional or inherent
right of a convicted person to be conditionally released before the expiration of a
valid sentence.” Id. at 7. “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., 929 F.2d at 235 (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.).
A claim of entitlement to parole “can be created only by the operation of
state law.” Crump, 657 F.3d at 397 (citing Inmates of Orient Corr. Inst., 929 F.2d
at 235). The question then is whether under state law “Petitioner had ‘a legitimate
claim of entitlement to’ parole, rather than ‘an abstract need or desire for it.’”
Crump, 657 F.3d at 399 (quoting Greenholtz, 442 U.S. at 7) (quoting Roth, 408
U.S. at 577). “[T]he salient factor is whether the statute contains mandatory
language that creates a presumption of release when the designated findings are
made.” Crump, 657 F.3d at 399 (citing Board of Pardons v. Allen, 482 U.S. 369,
377 (1987) (quoting Greenholtz, 442 U.S. at 12)).

Michigan’s parole statute states that “a prisoner’s release on parole is
discretionary with the parole board.” Mich. Comp. Laws § 791.234(11).
A fair reading of Michigan’s parole system reveals that it extends the
possibility—even to the extent of being probable—that parole status
will be awarded. “That the state holds out the possibility of parole
provides no more than a mere hope that the benefit will be obtained.”
Greenholtz, 442 U.S. at 11, 99 S.Ct. 2100 (citing Roth, 408 U.S. at
577, 92 S.Ct. 2701).
Crump, 657 F.3d at 405.
In short, “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 (quoting Crump, 657 F.3d at 404) (quoting Greenholtz, 442 U.S. at 7). Thus,
“even if the Parole Board relied on inaccurate information to deny [Petitioner]
parole, it did not violate any liberty interest protected by the United States
Constitution.” Caldwell v. McNutt, 158 F. App’x 739, 741 (6th Cir. 2006).
“Absent a protected interest, a prisoner may seek to enforce statutes or regulations
that govern the parole process as a matter of state law, but ‘procedural statutes and
regulations governing parole do not [alone] create federal procedural due process
rights.’” Wershe, 763 F.3d at 506 (quoting Sweeton v. Brown, 27 F.3d 1162, 1164
(6th Cir. 1994)).
Although substantive due process protects inmates from arbitrary
denials of parole based on impermissible criteria such as race,
political beliefs or frivolous factors, such as eye color, even where a
prisoner may not have a protected liberty interest, see Block v. Potter,

631 F.2d 233, 236 n. 2 (3d Cir. 1980), [Petitioner] does not present
any such allegations here. Consequently, [he] has failed to assert a
constitutional claim cognizable in a federal habeas proceeding.
Mayrides v. Chaudhry, 43 F. App’x 743, 746 (6th Cir. 2002).
To conclude, Petitioner has failed to establish that the Michigan Parole
Board violated a protected liberty interest, and “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)). Petitioner also has failed to show that the Parole Board’s recent
decision denying him parole was arbitrary and capricious or retaliation for his prior
challenge to the revocation of parole.
Accordingly,
IT IS ORDERED that the habeas petition (ECF No. 1) is summarily
DISMISSED; and
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED because Petitioner has failed to make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); and
IT IS FURTHER ORDERED that Petitioner may not proceed in forma
pauperis on appeal because an appeal could not be taken in good faith. 28 U.S.C.

§ 1915(a)(3); Fed. R. App. P. 24(a)(3)(A).
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 22, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, May 22, 2018, by electronic and/or U.S.
First Class mail.
s/ R. Loury
Case Manager