Hernandez #353061 v. Michigan Parole Board et al
MEMORANDUM AND ORDER ; 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. 2:14-cv-21
Honorable R. ALLAN EDGAR
MEMORANDUM AND ORDER
Petitioner Arron Hernandez filed this petition for writ of habeas corpus challenging
his failure to be released on parole. Petitioner pleaded guilty in the Wayne County Circuit Court to
assault with intent to do great bodily harm less than murder, MICH. COMP. LAWS § 750.84, and firstdegree home invasion, MICH. COMP. LAWS § 750.110a(2). On August 6, 2008, the trial court
sentenced Petitioner to concurrent prison terms of 1 to 10 years for the assault conviction and 6 to 20
years for the home invasion conviction. Petitioner also has a prior conviction for stalking, MICH.
COMP. LAWS § 750.411h, and three prior convictions for domestic violence, MICH. COMP. LAWS §
750.814. Petitioner’s action does not concern his criminal convictions; rather, he challenges the
denial of his parole.
Petitioner claims that the earliest release date for his present offenses was March 13,
2014. Petitioner alleges that the Michigan Parole Board, ordered a “current psychological evaluation
to determine risk of sexually reoffending.” Petitioner asserts that this was improper because he was
not convicted of a sexual offense. A social worker report dated October 18, 2013, indicated that
Petitioner was a “high risk for sexual re-offense.” Prior to the issuance of the report, Petitioner was
interviewed by report author social worker Jeffrey Senk. PageID.71-75. Petitioner refused to confess
that he had committed sexual offenses. Petitioner contends that his refusal to admit to a crime that
had been dismissed as part of his plea agreement, resulted in the report indicating that he is a high risk
for sexually re-offending and was the reason that he was denied parole. The reports states in part:
To his detriment he was unwilling to talk about the sexual nature of
his behavior at the time of the offense. His rationale was that since he
had not been convicted of those charges and since his lawyer advised
him to invoke his 5th amendment protections this aspect of the offense
did not apply. This suggests a limited willingness to accept and
acknowledge responsibility for his actions. He also appears to be
minimizing the extent to which he views his use of substances as
problematic and it should be remembered that he has been cited for
substance abuse-alcohol while in a prison environment as recently as
within the last 12 months. He has a history of violence within his
interpersonal relationship that was long standing. His overall behavior
suggests a limited willingness to delay gratification.
PageID. 13. On November 22, 2013, Parole Board Members Amy Bonito and Jane Price issued a
Parole Board Notice of Decision denying him parole. PageID.68-70. The reasons for parole denial
were many. Petitioner was convicted of an assaultive crime that resulted in injury, involving a minor
victim, using excessive force with an intention to permanently cause injury. Petitioner’s crime
showed a reckless disregard for life, arose during a commission of another crime and involved a
family member or acquaintance. The crime was a crime of violence with malicious intent to
intimidate. The crime involved breaking and entering an occupied dwelling and was against a
resident of the home that Petitioner unlawfully entered. It was the parole board members’ belief that
Petitioner minimized his responsibility for the crime. Petitioner has a criminal history that includes
violent misdemeanors, weapons violations, assaultive felony, traffic misdemeanors, and drug and
alcohol crimes. Petitioner has become progressively more dangerous since being involved in similar
juvenile crimes. While in prison, Petitioner has been convicted of misconducts involving substance
abuse. Petitioner has a history of failing to report while on probation, assaultive behavior while on
parole, and new criminal behavior during parole. Petitioner has a history of substance abuse. In
denying parole it was recommended that Petitioner participate in vocation and training programs,
enter substance abuse programming, engage in positive behavior, comply with recommendations for
psychological screening, and therapeutic programming when referred. Petitioner’s remaining claim
is that his First Amendment right to freedom of speech and his Fifth Amendment right against selfincrimination were violated when he was denied parole as a result of his refusal to admit guilt to an
offense for which he was not convicted.
Petitioner alleges that his right against self-incrimination was violated when he was
denied parole as a result of his refusal to admit guilt to the parole board. This 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, in order to improve his chances for parole, that he
committed the crime(s) for which he is incarcerated. See Hawkins v. Morse, No. 98-2062, 1999 WL
1023780, at *2 (6th Cir. Nov. 4, 1999) (citing Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272,
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) (emphasis in
original). Therefore, the Fifth Amendment is not implicated in this case because Petitioner can no
longer be charged with criminal sexual conduct arising out of the underlying conduct that supports
his convictions. Petitioner entered into a plea agreement where the prosecutor agreed to drop the
criminal sexual conduct charge in exchange for his plea to assault with intent to commit great bodily
harm less than murder and with home invasion. Petitioner cannot face a future charge of criminal
sexual conduct arising from the conduct which supports his convictions. Moreover, Petitioner was
not compelled to speak, he was merely given a choice to speak. Ohio Adult Parole Auth., 523 U.S.
at 286 (inmate not granted immunity for statements made during clemency interview “merely faces
a choice quite similar to the sorts of choices that a criminal defendant must make in the course of
criminal proceedings, none of which has ever been held to violate the Fifth Amendment.” Id.
Petitioner also claims that his First Amendment rights have been violated because he
was required to say that he is guilty of criminal sexual conduct, despite those charges being dropped,
in order to improve his chance of parole. 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 v. Morse, 1999 WL 1023780, at *2). The Third Circuit addressed the issue
in more detail. In Newman v. Beard, 617 F.3d 775, 781 (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. (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 of what he believes.” Newman, 617 F.3d at 781. 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 interests.” Turner v. Safley, 482 U.S. 78, 89
(1987). The Newman court 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 that the requirement that he admit guilt
serves no legitmate penological purpose or is unrelated to rehabilitation. Moreover, the Supreme
Court squarely 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 v. Lile, 536 U.S. 24, 47 (2002).
Petitioner claims that his admission of a sex crime would be false and it therefore is not relevant to
his rehabilitation. However, because Petitioner entered a plea and was convicted of an assault
offense, the state has no further burden of proving his guilt in relation to his eligibility for
rehabilitation programs and parole. Newman, 617 F.3d at 781. Most importantly, Petitioner was not
asked to admit to conduct that could support a conviction for criminal sexual conduct, but to admit
to the factual circumstances that surrounded the crimes for which he was actually convicted. The fact
that Petitioner’s assault conviction may have some associated sexual behavior is certainly a relevant
consideration when determining eligibility for parole. As a consequence, Petitioner fails to state a
First Amendment claim.
Petitioner cites King v. Davis, 688 F. Supp. 2d 689 (E.D. Mich. 2009). In King, the
district court held that a similar First Amendment claim had “arguable merit” because “having to
admit guilt in order to participate in sex offender therapy is not a voluntary decision, given the
consequences of not doing so.” Id. at 691-92. The court noted that the state may not condition a
benefit on the waiver of constitutionally protected rights. Id. at 692 (citing Perry v. Sindermann, 408
U.S. 593, 597 (1972)). The court reasoned that “false admission of guilt surely would not facilitate
the penological goal of rehabilitation,” and noted that “there is some disagreement as to whether an
inmate’s admission of guilt leads to rehabilitation.” Id. (citing Michigan Public Policy Update, Vol.
6, Issue 47 (Nov. 17-23, 2008), which states that a “prisoner’s assertion of innocence should not,
standing alone, be a basis for denying parole,” because “[t]here is not objective verifiable evidence
that an ‘assertion of innocence’ by an inmate increases the likelihood of recidivism”).
The reasoning in King v. Davis is not persuasive. Even if an assertion of innocence
does not increase the likelihood of recidivism for inmates generally, the majority of justices of the
Supreme Court recognized, in McKune, that acceptance of responsibility for a sex offense serves
legitimate penological purposes. Moreover, though Petitioner contends correctly that he is innocent
of the CSC charge, he pleaded guilty to assault with intent to do great bodily harm less than murder.
The government dismissed criminal sexual conduct charges as part of the plea agreement.
Accordingly, the state may examine the underlying facts of Petitioners’ assault conviction when
making parole determinations, and it has no further burden of proving his guilt in order to
demonstrate that acceptance of responsibility for that crime serves a legitimate penological interest.
See Newman, 617 F.3d at 781. For the foregoing reasons, therefore, the Court follows the reasoning
in Hawkins and Newman and holds that Petitioner does not state a First Amendment claim. Further,
Petitioner ignores each of the other reasons that he was denied parole. These reasons include his
inability to previously comply with parole requirements, his substance abuse problem, his behavioral
problems while confined in prison evidenced by his misconduct violations, his violent history, and
the increasing severity of his past criminal actions.
Accordingly, the Petition is Dismissed. It is further ordered that Petitioner’s motion
to expedite (ECF No. 16) is denied as moot.
In addition, if Petitioner should choose to appeal this action, a certificate of
appealability is denied as to each issue raised by the Petitioner in this application for habeas corpus
relief. 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).
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. 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.
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.” The undersigned concludes that reasonable jurists could
not find that a dismissal of each of Petitioner’s claims was debatable or wrong. Therefore, the court
will deny Petitioner a certificate of appealability.
A Judgment consistent with this Memorandum and Order will be entered.
/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE
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