Bush #379599 v. Rivard et al

Filing 5

OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DOUGLAS P. BUSH,
Petitioner,
v.

Case No. 1:13-cv-142
Honorable Robert J. Jonker

STEVEN RIVARD et al.,
Respondents.
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OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2241. Promptly after the filing of a petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.”
Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be
summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court
has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4
includes those petitions which raise legally frivolous claims, as well as those containing factual
allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.
1999). After undertaking the review required by Rule 4, the Court concludes that the petition must
be dismissed because it fails to raise a meritorious federal claim.

Factual Allegations
Petitioner Douglas P. Bush is incarcerated by the Michigan Department of
Corrections at the St. Louis Correctional Facility. He contends that the Michigan parole board has
denied him parole in violation of his constitutional rights and in violation of the Michigan parole
guidelines. Apparently, the board determined, based on Petitioner’s criminal history and the nature
of his crime, that it lacked assurance that Petitioner would not be a threat to society. That finding,
Petitioner asserts, was not adequately supported by evidence, and amounts to a double-jeopardy
violation and a violation of his right to equal protection and due process. In addition, the parole
board apparently inquired as to whether Petitioner accepted responsibility for his crime, but
Petitioner maintained his innocence. He asserts that the parole board’s inquiry violates his rights
under the First and Fifth Amendments. He also broadly alleges that the parole board is guilty of
conspiracy under 42 U.S.C. § 1985, and a variety of state-law violations, including: fraud, malicious
prosecution, misuse of the legal system, abuse of process, misrepresentation, suppression and
falsification of evidence, obstruction of justice, false charges, and extortion. Finally, Petitioner
asserts that he has been classified to level 4 security for over a year in retaliation for telling a judge
and prosecutor, “I know what you did and how you did it, and I AM GOING TO TAKE YOUR ASS
INTO COURT AND KICK YOUR ASS.” (Pet., docket #1, Page ID#4.)
Discussion
Petitioner filed his application for habeas relief under 28 U.S.C. § 2241 and Rule 60
of the Federal Rules of Civil Procedure. Rule 60 does not provide for an independent cause of
action; however, § 2241 generally authorizes federal district courts to issue a writ of habeas corpus

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to a state or federal prisoner who is in custody “in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3).
A. Procedural Due Process
Petitioner claims that the parole board violated his due process rights. To establish
a procedural due process violation, Petitioner must prove that (1) he was deprived of a protected
liberty or property interest, and (2) such deprivation occurred without the requisite due process of
law. Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 296 (6th Cir.
2006); see also Swihart v. Wilkinson, 209 F. App’x 456, 458 (6th Cir. 2006). Petitioner fails to raise
a claim of constitutional magnitude because he has no liberty interest in being released on parole.
There is no constitutional or inherent right to be conditionally released before the expiration of a
prison sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979).
Although a state may establish a parole system, it has no duty to do so; thus, the presence of a parole
system by itself does not give rise to a constitutionally protected liberty interest in parole release.
Id. at 7, 11; Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). Rather, a liberty interest is present
only if state law entitles an inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio State
Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991).
In Sweeton v. Brown, 27 F.3d 1162, 1164-165 (6th Cir. 1994) (en banc), the Sixth
Circuit, noting “the broad powers of the Michigan authorities to deny parole,” held that the Michigan
system does not create a liberty interest in parole. In a recent published decision, the Sixth Circuit
reiterated the continuing validity of Sweeton. See Crump v. Lafler, 657 F.3d 393, 404 (6th Cir.
2011). In Crump, the court held that the adoption of specific parole guidelines since Sweeton does
not lead to the conclusion that parole release is mandated upon reaching a high probability of parole.
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See id.; see also Carnes v. Engler, 76 F. App’x 79, 80 (6th Cir. 2003). In addition, the Sixth Circuit
has rejected the argument that the Due Process Clause is implicated when changes to parole
procedures and practices have resulted in incarcerations that exceed the subjective expectation of the
sentencing judge. See Foster v. Booker, 595 F.3d 353, 369 (6th Cir. 2010). Finally, the Michigan
Supreme Court has recognized that there exists no liberty interest in parole under the Michigan
system. Glover v. Mich. Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999). Thus, Petitioner fails
to state a claim for a violation of his due process rights arising from the denial of his parole.
B. Fifth Amendment
Petitioner also asserts that the parole board violated his Fifth Amendment right not
to incriminate himself and continues to violate his Fifth Amendment right when he was denied
parole because he maintained his innocence for his crime. That assertion is without merit.
It is well-settled that the Fifth Amendment right against self-incrimination is not
implicated by the alleged pressure on a prisoner to admit that he committed the crime for which he
is incarcerated, in order to improve his chances for parole. See Hawkins v. Morse, No. 98–2062,
1999 WL 1023780, at *2 (6th Cir. Nov. 4, 1999) (citing Ohio Adult Parole Auth., 523 U.S. at
285–88 (1998)); see also Rice v. Mich. Parole Bd., No. 1:05–cv–549, 2005 WL 2297463, at *3–4
(W.D. Mich. Sept. 21, 2005) (Fifth Amendment extends only to proceedings in which answers might
incriminate the individual in future criminal proceedings; therefore refusal to admit to crimes of
which prisoner had already been convicted did not implicate Fifth Amendment). Therefore, the
parole board’s consideration of Petitioner’s refusal to admit guilt for the crimes of which he already
has been convicted does not violate his Fifth Amendment rights.

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C. First Amendment
Petitioner also asserts a violation of his rights under the First Amendment. To the
extent that he refers to the parole board’s inquiry into his acceptance of guilt for his crime, he does
not state a First Amendment claim. In Hawkins, 1999 WL 1023780, at *2, the Sixth Circuit affirmed
the dismissal of a prisoner’s similar First Amendment claim, stating that “the parole board’s
consideration of a prisoner’s willingness to accept responsibility for committing a crime does not
force [the prisoner] to admit his guilt. [The prisoner] is free to maintain his innocence.” Id.; see also
Hawkins v. Abramajtys, No. 99–1995, 2000 WL 1434695, at *1 (6th Cir. Sept. 19, 2000)
(reaffirming the decision in Hawkins).
The Third Circuit addressed the issue in more detail in Newman v. Beard, 617 F.3d
775 (3d Cir. 2010). The court acknowledged that the First Amendment protects both the right to
speak freely and the right not to speak at all. Id. at 781 (citing Wooley v. Maynard, 430 U.S. 705,
714 (1977)). The Amendment ordinarily prevents the state from “inquir[ing] about a man’s views
or associations solely for the purpose of withholding a right or benefit because of what he believes.”
Newman, 617 F.3d at 781 (quoting Baird v. State Bar of Ariz., 401 U.S. 1, 7 (1971)). As the
Supreme Court repeatedly has recognized, however, incarceration necessarily “imposes restrictions
on a prisoner’s rights.” Id. (quoting Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 129
(1977)). A prisoner retains only those First Amendment rights that are not “inconsistent with his
status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v.
Procunier, 417 U.S. 817, 822 (1974). “[W]hen a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate penological

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interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The court in Newman held that the prisoner
failed to make the necessary showing under Turner. See Newman, 617 F.3d at 781.
Here, as in Newman, Petitioner fails to allege or show that the requirement that he
admit guilt serves no legitimate penological purpose or is unrelated to rehabilitation. Indeed, the
Supreme Court has recognized that “‘States . . . have a vital interest in rehabilitating convicted sex
offenders’ and ‘acceptance of responsibility for past offenses’ is a ‘critical first step’ in a prison’s
rehabilitation program for such offenders.’” Id. (quoting McKune, 536 U.S. at 33). McCune’s
observation regarding sex-offender rehabilitation readily extends to rehabilitation of prisoners
convicted of other crimes. In other words, Petitioner’s First Amendment claim is without merit.
D. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that a state may
not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1. A state practice generally will not require strict scrutiny unless it interferes with a
fundamental right or discriminates against a suspect class of individuals. Mass. Bd. of Ret. v.
Murgia, 427 U.S. 307, 312 (1976). Petitioner does not assert that he is a member of a suspect class,
and “prisoners are not considered a suspect class for purposes of equal protection litigation.”
Jackson v. Jamrog, 411 F.3d 615, 619 (6th Cir. 2005); see also Wilson v. Yaklich, 148 F.3d 596, 604
(6th Cir. 1998).
Because neither a fundamental right nor a suspect class is at issue, the rational basis
review standard applies. Club Italia Soccer & Sports Org., Inc., 470 F.3d at 298. “Under rational
basis scrutiny, government action amounts to a constitutional violation only if it ‘is so unrelated to
the achievement of any combination of legitimate purposes that the court can only conclude that the
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government’s actions were irrational.’” Id. (quoting Warren v. City of Athens, 411 F.3d 697, 710
(6th Cir. 2005)). To prove his equal protection claim, Petitioner must demonstrate “intentional and
arbitrary discrimination” by the state; that is, he must demonstrate that he “has been intentionally
treated differently from others similarly situated and that there is no rational basis for the difference
in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Here, Petitioner does not identify the basis on which he was treated differently.
Moreover, he fails to identify any prisoner who was similarly-situated to him in all relevant respects
but obtained a favorable result with the parole board. Thus, his equal-protection claim is without
merit.
E. Double Jeopardy
Petitioner claims that the denial of parole constituted double jeopardy. “The Double
Jeopardy Clause of the Fifth Amendment provides that no person shall ‘be subject for the same
offence to be twice put in jeopardy of life or limb.’” Rashad v. Burt, 108 F.3d 677, 679 (6th Cir.
1997) (quoting U.S. Const., amend. V).

The Double Jeopardy Clause prohibits multiple

punishments for the same criminal offense. United States v. Hebeka, 89 F.3d 279, 282 (6th Cir.
1996). Because Petitioner has no legitimate entitlement to parole prior to the completion of his
sentence, the denial of parole cannot constitute double jeopardy. Malek v. Haun, 26 F.3d 1013, 1016
(10th Cir. 1994). The denial of parole does not change the length of Petitioner’s sentence; it merely
denies him an early release. Therefore, it cannot possibly be viewed as the imposition of more than
one punishment for the same offense. Mahn v. Gunter, 978 F.2d 599, 602 (10th Cir. 1992); Alessi
v. Quinlan, 711 F.2d 497, 500 (2d Cir. 1983); Averhart v. Tutsie, 618 F.2d 479, 483 (7th Cir. 1980);

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Coronado v. U.S. Bd. of Parole, 540 F.2d 216, 217 (5th Cir. 1976). Consequently, Petitioner’s
double jeopardy claim is also without merit.
F. Retaliation
Petitioner also claims that the parole board denied him parole in retaliation for his
decision to maintain his innocence. Retaliation based upon a prisoner’s exercise of his or her
constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th
Cir. 1999) (en banc). In order to set forth a retaliation claim, a plaintiff must establish that: (1) he
was engaged in protected conduct; (2) an adverse action was taken against him that would deter a
person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated,
at least in part, by the protected conduct. Thaddeus-X, 175 F.3d at 394.
Petitioner’s claim is unsupported. He alleges no facts whatsoever regarding his parole
proceedings to indicate that the parole denials were motivated by any protected conduct.
Furthermore, as noted, supra, the parole board could properly consider whether Petitioner accepted
responsibility for his crime, and it could deny him parole based on evidence that he did not accept
such responsibility. See Newman, 617 F.3d at 781 n.3 (dismissing prisoner’s retaliation claim
challenging a requirement that he admit guilt as a condition for parole).
Petitioner also contends that he is currently in a higher level of security in retaliation
for threatening statements that he made toward a judge and prosecutor. That claim is also
unsupported by any facts suggesting retaliation. Also, it is not the proper subject of a habeas corpus
action because it does not challenge the validity of his custody; it merely challenges his prison
conditions. Thus, Petitioner’s retaliation claim is also without merit.

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G. Conspiracy
Petitioner asserts that the parole board engaged in a conspiracy in violation of 42
U.S.C. § 1985. Because Petitioner has not alleged or shown a viable constitutional claim, his
assertion that members of the parole board engaged in a conspiracy in violation of his constitutional
rights is without merit.
H. State Law
Petitioner contends that the parole board violated various state laws and parole
guidelines. Federal courts may issue a writ of habeas corpus to release a state prisoner only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2241(c). “[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); see also Pulley v. Harris, 465 U.S. 37, 41 (1984). Accordingly,
Petitioner’s claim that the parole board violated state law or parole guidelines does not state a
meritorious claim to relief under § 2241.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because it fails to raise a meritorious federal claim.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
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unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir. 1989)
(it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant service
under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate
would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at
484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “A
petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). In applying this standard, the Court may not conduct a full merits review, but must limit its
examination to a threshold inquiry into the underlying merit of Petitioner’s claims. Id.

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The Court finds that reasonable jurists could not conclude that this Court’s dismissal
of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
of appealability.
A Judgment and Order consistent with this Opinion will be entered.

Dated:

April 29, 2013

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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