Hughes #182524 v. Napels

Filing 2

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
NORTHERN DIVISION

MARVIN D. HUGHES,
Petitioner,
v.

Case No. 2:12-cv-360
Honorable R. Allan Edgar

ROBERT NAPELS,
Respondent.
_______________________________/
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. 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 filed this habeas corpus petition asserting that he is challenging the August
24, 2012, denial of parole. Petitioner alleges that he attended a parole board interview on August
14, 2012, and that on August 24, Parole Board Members Jane E. Price and Stephen Deboer ordered
that Petitioner be continued for an additional 12 months on “among other crimes, an expired 2 yr
felony firearm sentence.” Petitioner states that the maximum term of his 2 year felony firearm
sentence was added to the maximum term of Petitioner’s armed robbery convictions. The start date
for the felony firearm sentence was February 4, 1986. Plaintiff asserts that pursuant to MCL
750.227b, the sentence on a felony firearm conviction must run consecutive to and preceding any
term of imprisonment imposed for the underlying felony conviction. Petitioner contends that he had
a legitimate expectation that his felony firearm sentence would terminate on February 4, 1988, two
years after its imposition. Petitioner states that the decision of Parole Board Members Jane E. Price
and Stephen Deboer to consider his felony firearm sentence and his armed robbery sentence to be
“aggregated,” constitutes double jeopardy and violates his rights to due process and to be free from
cruel and unusual punishment.
Discussion
Petitioner claims that the August 24, 2012, denial of parole violated his constitutional
rights because it was based on an expired sentence. However, according to the MDOC Offender
Tracking Information System (OTIS), Petitioner is serving two concurrent sentences for 20 to 60
years imprisonment for armed robbery.

(See http://mdocweb.state.mi.us/otis2/otis2profile.

aspx?mdocNumber=182524.) Petitioner states that he does not “take issue with the Parole Board
decision to hold him in custody an additional 12-months on the active ‘armed robbery’ sentence.”
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Petitioner fails to allege any facts showing that the Parole Board specifically relied on the felony
firearm sentence in denying him parole.
As noted above, 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.), cert. denied, 519 U.S. 999, 117 S. Ct. 496 (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, but merely denies him an early release. Therefore,
it cannot 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); Coronado v. U.S. Board of Parole, 540 F.2d
216, 217 (5th Cir. 1976). Consequently, Petitioner’s double jeopardy claim is without merit.
Petitioner also claims that his parole denial violates his Fourteenth Amendment due
process rights. 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
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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).
Until Petitioner has served his 60-year maximum sentence, 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 consider Petitioner for parole, therefore, implicates no federal right. In the
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absence of a liberty interest, Petitioner fails to state a claim for a violation of his procedural due
process rights.
Finally, Petitioner claims that the August 24, 2012, parole denial violated his rights
under the Eighth Amendment. The Eighth Amendment to the United States Constitution, applicable
to the states through the Due Process Clause of the Fourteenth Amendment, protects against cruel
and unusual punishments. See U.S. CONST., amend. VIII; Harmelin v. Michigan, 501 U.S. 957, 962
(1991). The Eighth Amendment, however, does not require strict proportionality between a crime
and its punishment. Harmelin, 501 U.S. at 965; United States v. Marks, 209 F.3d 577, 583 (6th Cir.
2000). “Consequently, only an extreme disparity between crime and sentence offends the Eighth
Amendment.” Marks, 209 F.3d at 583. A sentence that falls within the maximum penalty
authorized by statute “generally does not constitute ‘cruel and unusual punishment.’” Austin v.
Jackson, 213 F.3d 298, 302 (6th Cir.2000) (quoting United States v. Organek, 65 F.3d 60, 62 (6th
Cir. 1995)).
In the instant case, the Court notes at the outset that the Eighth Amendment claim is
factually baseless. The parole board did not issue a sentence, but merely declined to extend parole
to Petitioner on August 24, 2012. See Preston v. Hughes, No. 97-6507, 1999 WL 107970, *2 (6th
Cir. Feb. 10, 1999). Moreover, assuming Defendants’ decision may be considered the imposition
of punishment, Petitioner’s sentence falls within the maximum allowed by statute. See MCL
750.529 (one found guilty of armed robbery may be sentenced to imprisonment for life or for any
term of years). Therefore, Petitioner’s sentence does not run afoul of the Eighth Amendment’s ban
of cruel and unusual punishment. Austin, 213 F.3d at 302.

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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).
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
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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:

10/5/2012

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge