Kinard #189372 v. Michigan Parole Board et al
Filing
11
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
WALTER KINARD,
Petitioner,
v.
Case No. 1:13-cv-1169
Honorable Robert J. Jonker
MICHIGAN PAROLE BOARD et al.,
Respondents.
_______________________________/
OPINION
This is a habeas corpus action brought by a state prisoner, purportedly 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 Walter Kinard presently is incarcerated with the Michigan Department of
Corrections (MDOC) at the Muskegon Correctional Facility. He was convicted of armed robbery,
MICH. COMP. LAWS § 750.529, and possessing a firearm during the commission of a felony, MICH.
COMP. LAWS § 750.227b. On August 5, 1987, he was sentenced to a parolable life sentence on the
armed-robbery conviction and two years on the felony-firearm conviction.
Petitioner does not challenge his underlying conviction, but instead challenges the
procedures used by the Michigan Parole Board to deny his parole on November 28, 2011. Petitioner
asserts that, in reaching its decision, the parole board relied on inaccurate information and failed to
enforce the procedures of the Michigan Prisoner Reentry Initiative (MPRI), set forth under MICH.
COMP. LAWS § 791.233e and MICH. DEP’T OF CORR., Policy Directive 06.05.100. He seeks a new
parole hearing based on corrected information and proper application of state law.
Discussion
Petitioner claims that Defendant violated his due process rights by relying on false
information and failing conduct its decisionmaking within the requirements of state law and policy.
To establish a procedural due process violation, a 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.
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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.
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). As a consequence,
Petitioner has no liberty interest in the Michigan parole procedures.
Petitioner’s related allegation that Respondents relied on false information to deny
his parole also fails to raise a meritorious federal claim. Because Petitioner has no liberty interest
in being paroled, he cannot show that the false information was relied upon to a constitutionally
significant degree. See Caldwell v. McNutt, No. 04-2335, 2006 WL 45275, at *1 (6th Cir. Jan. 10,
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2006) (“[E]ven if the Parole Board relied on inaccurate information to deny Caldwell parole, it did
not violate any liberty interest protected by the United States Constitution.”); Echlin v. Boland, No.
03-2309, 2004 WL 2203550, at *2 (6th Cir. Sept. 17, 2004) (prisoner could not bring a § 1983 action
to challenge the information considered by the parole board because he has no liberty interest in
parole); see also Draughn v. Green, No. 97-1263, 1999 WL 164915, at *2 (6th Cir. Mar. 12, 1999)
(in order for the Due Process Clause to be implicated, false information in a prisoner’s file must be
relied on to a constitutionally significant degree); Pukyrys v. Olson, No. 95-1778, 1996 WL 636140,
at *1 (6th Cir. Oct. 30, 1996) (no constitutional violation by having false information placed in a
prison file); Carson v. Little, No. 88-1505, 1989 WL 40171, at *1 (6th Cir. Apr. 18, 1989)
(inaccurate information in an inmate’s file does not amount to a constitutional violation). Therefore,
Petitioner fails to state a claim for a violation of his due process rights arising from the inaccurate
information contained in his file.
Until Petitioner has served his maximum sentence of life imprisonment, he has no
reasonable expectation of liberty. The discretionary parole system in Michigan holds out “no more
than a mere hope that the benefit will be obtained.” Greenholtz, 442 U.S. at 11. The Michigan
Parole Board’s failure or refusal to follow its own procedures, therefore, implicates no federal right.
In the absence of a liberty interest, Petitioner fails to state a claim for a violation of his procedural
due process rights.
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.
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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
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
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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.
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:
November 13, 2013
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
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