Hall v. Vermont Department of Corrections et al

Filing 8

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

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

VICTOR G. HALL,
Petitioner,
v.

Case No. 1:17-cv-451
Honorable Robert J. Jonker

VERMONT DEPARTMENT OF
CORRECTIONS et al.,
Respondents.
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OPINION
This is a habeas corpus action brought by a prisoner of the State of Vermont under
28 U.S.C. § 2254.1 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

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Some courts have held that challenges to placement in an out-of-state private prison should be bought in
actions under 42 U.S.C. § 1983. See, e.g., Moran v. Sondalle, 218 F.3d 647, 651 (7th Cir. 2000). Other courts have
concluded that challenges such as Petitioner’s involve the execution of a sentence, and therefore should be brought in
an action under 28 U.S.C. § 2241, rather than § 2254. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000)
(citing cases). Yet Petitioner’s claim also appears to attack not only the execution of his sentence, but also the duration
of his sentence, since he seeks immediate release. Such a claim arguably would fall under § 2254. Id. (holding that the
typical view is that § 2254 is the proper vehicle for such claims). The Court concludes that, based on the relief Petitioner
seeks, § 1983 is not the proper vehicle for his claims. The Court will assume without deciding that Petitioner has
properly raised his claims in a § 2254 action.

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.
Background
Petitioner Victor G. Hall presently is incarcerated at the North Lake Correctional
Facility in Baldwin, Michigan, which is a private prison operated by the GEO Group. Petitioner
pleaded guilty in the Vermont Superior Court, Chittenden Criminal Division, to two counts of
aggravated sexual assault. On November 26, 2007, Petitioner was sentenced to prison terms of 10
to 50 years.
Petitioner filed an appeal to the Vermont Supreme Court, claiming the following:
(1) his attorney rendered ineffective assistance; (2) his plea was involuntary; and (3) he was actually
innocent of the offense. The Vermont Supreme Court denied his claims and affirmed his convictions
on November 5, 2008. He alleges that he filed a motion for postconviction relief in the Vermont
Superior Court in the fall of 2009, in which he raised the same issues presented on direct appeal.
The motion allegedly was not decided until January 2013, when it was denied.
Although Petitioner continues to claim that he is actually innocent and that he was
forced to plead guilty because his attorney utterly failed to prepare a defense, he does not challenge
his convictions or sentences in his habeas petition. Instead, Petitioner argues that Vermont lacked
jurisdiction to transfer him out of state to a private prison, operated by the GEO Group, to serve his
sentence. He contends that, because his transfer to a private prison in Michigan was without
jurisdiction, Vermont lost all jurisdiction to hold him. Moreover, because the GEO Group is closing
its doors on June 20, 2017, Petitioner knows that he is being transferred out of the facility shortly.
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He therefore seeks an injunction preventing Vermont from transferring him to another state, on the
grounds that it now lacks jurisdiction. He also seeks immediate release from incarceration, as his
continuing custody can no longer be enforced by Vermont, because of the break in legal custody.
In support of his position, Petitioner attaches an article he wrote on the illegality of Vermont’s use
of out-of-state private prisons to house its state prisoners.
Discussion
To the extent that Petitioner alleges that he has been deprived of due process by his
transfer out of state, his claim is meritless. The courts repeatedly have held that an inmate does not
have a liberty interest in assignment to a particular institution, even one situated out of state. Olim
v. Wakinekona, 461 U.S. 238, 245 (1983) (addressing a challenged transfer from Hawaii to
California); Meachum v. Fano, 427 U.S. 215, 224–25 (1976); Montanye v. Haymes, 427 U.S. 236,
243 (1976); Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976); Newell v. Brown, 981 F.2d 880, 883 (6th
Cir. 1992); Beard v. Livesay, 798 F.2d 874, 876 (6th Cir.1986). Therefore, because he has no liberty
interest in his placement, Petitioner does not have a due process interest in his placement out of state.
In addition, to the extent that Petitioner argues that Vermont law does not permit the
Vermont Department of Corrections to transfer him an out-of-state private prison, he fails to state
a cognizable federal claim. “[A] federal court may issue the writ to 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.’”
Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting 28 U.S.C. § 2254(a)). A habeas petition must
“state facts that point to a ‘real possibility of constitutional error.’” Blackledge v. Allison, 431 U.S.
63, 75 n.7 (1977) (quoting Advisory Committee Notes on Rule 4, RULES GOVERNING HABEAS
CORPUS CASES). The federal courts have no power to intervene on the basis of a perceived error of
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state law. Wilson, 562 U.S. at 5; Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire,
502 U.S. 67-68 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984).
Further, federal courts have consistently upheld transfers of inmates to private, out-ofstate facilities. See Moran v. Sondalle, 218 F.3d 647, 651 (7th Cir. 2000) (holding that an “objection
to transfer to privately run, out-of-state prisons would be frivolous”); Montez v. McKinna, 208 F.3d
862, 866 (10th Cir. 2000) (rejecting challenge to such transfer as “unsupported by law”); see also
Abordo v. O’Dell, 23 F. App’x 615, 616 (8th Cir. 2001); Rael v. Williams, 223 F.3d 1153, 1154
(10th Cir. 2000) (holding that the fact that an inmate is transferred to, or must reside in, a private
prison, simply does not raise a federal constitutional claim); Pischke v. Litscher, 178 F.3d 497, 500
(7th Cir. 1999) (rejecting claim that transfer to an out-of-state, private prison violates the federal
constitution). For the reasons set forth in the cited cases, the Court rejects Petitioner’s argument.
Moreover, Petitioner’s assertion that the State of Vermont lost jurisdiction over him
when it transferred him to a facility out of state arises out of “a popular myth among prisoners that
a state’s authority over a prisoner ends at the state’s geographical border.” Evans v. Holm, 114
F. Supp. 2d 706, 711 (W.D. Tenn. 2000). The theory that a state’s jurisdiction over a convicted
prisoner is lost once the prisoner has been transferred to a private, out-of-state prison has been
rejected by every court that has considered the question. See, e.g., Montez, 208 F.3d 866; Abordo,
23 F. App’x at 616; Evans, 114 at 711 (citing numerous cases); see also Turner v. Riley, No. CV-060065-CG-C, 2006 WL 1452693, at *5 (S.D. Ala. May 22, 2006) (citing Evans, 114 F. Supp. 2d at
713); Payne v. Allen, No. 08-0795, 2009 WL 1546362 (W.D. La. June 1, 2009); Mills v. Alabama,
12 So. 3d 718, 719-20 (Ala. Crim. App. 2007). Petitioner’s claim, therefore, will be denied as
meritless.
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Pending Motions
Also pending before the Court are Petitioner’s motion to appoint counsel (ECF No. 2)
and motion for preliminary injunctive relief (ECF No. 3). In light of the Court’s disposition of
Petitioner’s claims for relief, his pending motions will be denied as moot.
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
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).
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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.
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:

June 13, 2017

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

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