McGore #142739 v. Michigan Parole Board et al
OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 2:12-cv-49
Honorable R. Allan Edgar
BOARD et al.,
This is a habeas corpus action brought by Darryl McGore, 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;1 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.
The Rules Governing § 2254 Cases also may be applied to habeas corpus actions filed under § 2241. See Rule
1(b), RULES GOVERNING § 2254 CASES.
Petitioner is incarcerated at the Baraga Maximum Correctional Facility. He is serving
numerous sentences imposed by the Wayne County Circuit Court including two sentences for life
with the possibility of parole imposed on January 21, 1977, for the offenses of armed robbery and
first-degree criminal sexual conduct. While his Petition provides very little information, Petitioner
appears to challenge the denial of his parole by the Michigan Parole Board or the parole board’s
failure to consider him for parole under the laws applicable to prisoners who are serving parolable
life terms. See MICH. COMP. LAWS § 791.234. The Court will liberally construe the petition as
asserting violations of the Due Process and Ex Post Facto Clauses.
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. 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).
Petitioner, therefore, 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. Consequently, the Michigan Parole Board’s failure or refusal to consider
Petitioner for parole 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.
Ex Post Facto
The Ex Post Facto Clause is “aimed at laws that ‘retroactively alter the definition of
crimes or increase the punishment for criminal acts.’” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499,
504 (1995) (citations omitted). When an inmate challenges an allegedly ex post facto parole law,
this court “must examine the relevant law in effect at the time [the inmate’s] offense was committed
and compare it with the retroactively-applied version of the law.” Shabazz v. Gabry, 123 F.3d 909,
912 (6th Cir. 1997). The “focus of the ex post facto inquiry is not on whether a legislative change
produces some ambiguous sort of ‘disadvantage,’ . . . but on whether [the] change . . . increases the
penalty by which a crime is punishable.” Morales, 514 U.S. at 506 n. 3. Where a legislative change
is argued to increase the risk of affecting a prisoner’s punishment, the Supreme Court has made clear
that the appropriate inquiry is whether the retroactively-applied version of the parole law “produces
a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. at 509.
When the retroactively-applied version of the law “does not by its own terms show a significant risk”
of increased punishment, the inmate bringing the ex post facto challenge “must demonstrate, by
evidence drawn from the [law]’s practical implementation by the agency charged with exercising
discretion, that [the law’s] retroactive application will result in a longer period of incarceration than
under the earlier” version of the law. Garner v. Jones, 529 U.S. 244, 255 (2000).
In Foster v. Brooks, 595 F.3d 353 (6th Cir. 2010), the Sixth Circuit considered an ex
post facto claim brought by prisoners sentenced to life imprisonment with the possibility of parole
for offenses committed before October 1, 1992, challenging the Michigan Parole Board’s application
of post-1992 changes to Michigan’s parole laws to the plaintiffs’ parole review. The court concluded
that, to the extent that the plaintiffs faced a risk of increased punishment under the post-1992 parole
laws as compared to the laws in effect when they committed their offenses, changes to the parole
laws were not the cause of the increase. Id. at 355-56. Rather, the court attributed the parole board’s
low rates of parole to the legitimate exercise of discretion in granting fewer paroles. Id. at 356. The
court further held that even if the changes in the number of paroles did not result from a stricter
exercise of discretion, it was not clear that the plaintiffs had shown a sufficient risk of increased
punishment to prevail on their ex post facto claim. Id. Petitioner, therefore, fails to state an ex post
facto claim arising from changes to parole procedures for prisoners sentenced to parolable life terms.
Petitioner has filed several motions, including a motion to amend to add a civil rights
claim under 42 U.S.C. § 1983 (docket #4), motion for default judgment (docket #11), motion for
summary judgment (docket #15) and motion for writ of mandamus (docket #17).
In his motion to amend, Petitioner seeks to bring a civil rights claim under 42 U.S.C.
§ 1983. Petitioner’s motion appears to be an attempt to circumvent the “three strikes” provision set
forth in 28 U.S.C. § 1915(g). Under that statute, a prisoner who has filed at least three lawsuits that
were dismissed as frivolous, malicious or for failure to state a claim is barred from proceeding in
forma pauperis in future civil rights actions. Petitioner, who has filed over forty civil actions in this
Court, has three strikes. Consequently, he may not proceed in forma pauperis in a civil rights action
and must pay the $350.00 filing fee. The Court will not allow Plaintiff to avoid the three strikes
provision by amending this action to include a civil rights claim. Moreover, a challenge to the fact
or duration of confinement should be brought as a petition for habeas corpus and is not the proper
subject of a civil rights action brought pursuant to § 1983. See Preiser v. Rodriguez, 411 U.S. 475,
484, 493 (1973). Even if Petitioner could raise his claims in the context of a civil rights action, this
Court’s determination of the constitutional claims would be the same. Consequently, an amendment
to assert violations under § 1983 would be futile.
Because the Court is dismissing Petitioner’s action for failure to raise a meritorious
federal claim, his remaining motions will be denied as moot.
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.
In addition, Petitioner’s motion to amend (docket #4), motion for default judgment
(docket #11), motion for summary judgment (docket #15) and motion for writ of mandamus (docket
#17) will be denied.
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
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
A Judgment and Order consistent with this Opinion will be entered.
/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge
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