Hester #173100 v. Ludwick

Filing 37

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 31 , denying petitioner's petition for writ of habeas corpus; denying as moot petitioner's motion for order directing the parole board to render its decision on petitioner's parole 34 . A certificate of appealability is denied ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

Hester #173100 v. Ludwick

Doc. 37

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

M IC H A E L HESTER, Petitioner, C a se No. 1:09-CV-770 v. HON. ROBERT HOLMES BELL N IC K LUDWICK, R e sp o n d e n t. / O R D E R APPROVING AND ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS O n April 14, 2010, Magistrate Judge Joseph G. Scoville issued a Report and

R e c o m m e n d a tio n ("R&R") recommending that Petitioner Michael Hester's § 2254 petition f o r writ of habeas corpus be denied. (Dkt. No. 31.) Petitioner has filed objections to the R & R , and a motion for order directing the parole board to render its decision on Petitioner's p a ro le . (Dkt. Nos. 32, 34.) Petitioner was paroled on August 25, 2010.

This Court is required to make a de novo review upon the record of those portions of the R&R to which specific objections have been made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) ("[A] general objection to a magistrate's report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious."). Although the

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Magistrate Judge's R&R is reviewed de novo, this Court must review the state court proceedings consistent with the standards set forth in 28 U.S.C. § 2254.
P e titio n e r objects to the Magistrate Judge's conclusion that the evidence was su f f icie n t to support a guilty finding on three counts of the parole violation charges. With re sp e c t to the two charges that he left Wayne County without permission, Petitioner contends th a t the evidence was undisputed that he had prior permission from his parole agent to leave W a yn e County, and there was no testimony or evidence to support the Magistrate Judge's c o n c lu s io n that Petitioner's movement while in Ingham County was limited to the courthouse a n d his attorney's office. Petitioner does not dispute the accuracy of the state court's factual finding that "PA B ro o k s testified that the Petitioner was on his caseload and that he gave Petitioner permission to go back and forth to Ingham County for court dates on the stalking charges, as well as a tto rn e y visits on that matter." (Dkt. No. 20, Ingham County Cir. Ct. Op. 3.) Upon de novo re v i e w , the Court agrees with the Magistrate Judge that the state court's conclusion that P e titio n e r's presence at the MSU Student Union, four miles from the courthouse, exceeded th e permission he was granted to travel to Ingham County for court purposes, was supported b y substantial evidence. With respect to the charge that he engaged in assaultive, intimidating, or threatening b eh av ior against Chelsea Cunningham, Petitioner contends that the Magistrate Judge's d e ter m in a tio n that the definition of "threatening" found in Policy Directive 03.03.105 is

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" in a p p o site ," is clearly erroneous. The Court disagrees. Policy Directive 03.03.105, by its te rm s , applies to disciplinary sanctions against prisoners for rule violations. It does not p u rp o rt to define parole violations. The Magistrate Judge correctly determined that there was s u b s ta n tia l evidence to support the state court's finding that Petitioner's conduct with respect to Chelsea Cunningham constituted a parole violation. The Court is satisfied that the Ingham County Circuit Court's finding that the evidence w a s sufficient to support the parole revocation was not contrary to, nor did it involve an u n re a s o n a b le application of, clearly established Federal law as determined by the Supreme C o u rt of the United States, nor was it based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). Fina lly, Petitioner objects to the Magistrate Judge's conclusion that the Administrative L a w Examiner ("ALE") was not biased. Petitioner contends that bias can be inferred from th e fact that the ALE was employed as a hearing officer employed by the MDOC at the same tim e that the Sixth Circuit noted in Perry v. McGinnis, 209 F.3d 597 (6th Cir. 2000), the e x is te n c e of overwhelming evidence suggesting that there was a strong expectation that the n o t-g u ilty/d is m is s a l rate for inmate disciplinary hearings should not rise above 10%. Id. at 6 0 6 . Petitioner also contends that the ALE subjectively believed that Petitioner was guilty o f something because there were so many charges of parole violations lodged against him. N e ith e r of Petitioner's arguments tend to suggest that the ALE who presided over his parole re v o c a tio n hearing was not neutral and detached.

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P e titio n e r was paroled on August 25, 2010. Accordingly, his motion for order d ire c tin g the parole board to render its decision on Petitioner's parole is moot. An appeal may not be taken from a final order in a habeas case unless a certificate of a p p e ala b ility is issued. 28 U.S.C. § 2253(c)(1). A certificate of appealability may be issued " o n ly if the applicant has made a substantial showing of the denial of a constitutional right." 2 8 U.S.C. § 2253(c)(2). If an appeal is filed, the district judge who ruled on the habeas p e titio n must either issue a certificate of appealability or state why a certificate should not is s u e . Fed. R. App. P. 22(b). The district court must decide whether to issue a certificate of a p p e ala b ilility at the time of denial of habeas relief, and need not await an appeal or an a p p lic a tio n for a certificate. Rule 11(a) of the Rules Governing § 2254 Cases. Because M o v an t has failed to make a substantial showing of the denial of a constitutional right, a c e rtif ic a te of appealability will be denied. Accordingly, I T IS HEREBY ORDERED that Petitioner's objections to the Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 32) are OVERRULED. I T IS FURTHER ORDERED that the April 14, 2010, Report and Recommendation o f the Magistrate Judge (Dkt. No. 31) is APPROVED and ADOPTED as the opinion of the C o u rt. I T IS FURTHER ORDERED that Petitioner's petition for writ of habeas corpus ( D k t . No. 1) is DENIED. IT IS FURTHER ORDERED that Petitioner's motion for order directing the parole

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b o a r d to render its decision on Petitioner's parole (Dkt. No. 34) is DENIED AS MOOT. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 28 U .S .C . § 2253(c); Slack v. McDaniel, 529 U.S. 473 (2000).

Dated: October 18, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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