Hernandez #353061 v. Michigan Parole Board et al

Filing 4

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

AARON HERNANDEZ,
Petitioner,
v.

Case No. 2:14-cv-21
Honorable R. Allan Edgar

MICHIGAN PAROLE BOARD et al.,
Respondents.
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OPINION
This is a habeas corpus action brought by 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; see 28 U.S.C. § 2243.1 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 will dismiss Petitioner’s
Fourteenth Amendment due process claims because they fails to raise a meritorious federal claim.
The Court also will dismiss the Michigan Parole Board, Jane Price and Amy Bonito without
1

The Rules Governing § 2254 Cases also apply to habeas corpus actions brought under 28 U.S.C. § 2241 by
prisoners challenging state court judgments. See Rule 1(b), RULES GOVERNING § 2254 CASES.

prejudice because they are not proper Respondents to this action. Respondent Tribley will be
ordered to answer the petition with regard to Petitioner’s First and Fifth Amendment claims.
Factual Allegations
Petitioner, who is represented by counsel in this action, is incarcerated at the Ojibway
Correctional Facility. He 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 first-degree 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. The following Respondents are named in the petition: the Michigan Parole Board; Parole
Board Members Jane Price and Amy Bonito; and Linda Tribley, Warden of the Ojibway Correctional
Facility.
Petitioner claims that the earliest release date for his present offenses was March 13,
2014. On November 22, 2013, Parole Board Members Amy Bonito and Jane Price issued a Parole
Board Notice of Decision denying him parole. Petitioner contends that his due process rights were
violated when the parole board relied upon false and inaccurate information in making its decision
to deny parole. He further claims that he is being denied access to a rehabilitative program that is
required by the parole board in violation of his due process rights. In addition, Petitioner claims that,
during his interview with Parole Board Member Price, she threatened that Petitioner’s refusal to
admit to a crime(s) for which he was not convicted would prevent him from being paroled.
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Petitioner contends that denying him parole based upon his refusal to admit to an offense(s) for
which he was never convicted violated his First Amendment right to freedom of speech and his Fifth
Amendment right against self-incrimination.
Petitioner seeks declaratory and injunctive relief, including release from custody.
Discussion
I.

Relief in Habeas Proceedings

Petitioner purports to bring his action both as a habeas corpus action brought under
28 U.S.C. § 2241 and as a civil rights action brought under § 1983. Petitioner, however, paid only
the $5.00 filing fee applicable to a habeas corpus action.2 Furthermore, Petitioner is barred from
bringing his action under § 1983. 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, 494 (1973) (the essence of habeas
corpus is an attack by a person in custody upon the legality of that custody and the traditional
function of the writ is to secure release from illegal custody). The Supreme Court has held that a
state prisoner cannot make a cognizable claim under § 1983 for an alleged unconstitutional
conviction or for “harm caused by actions whose unlawfulness would render a conviction or sentence
invalid” unless a prisoner shows that the conviction or sentence has been “reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas corpus . . . .”
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see also Edwards v. Balisok, 520 U.S. 641, 646-48

2

The civil action filing fee is $350.00 for a prisoner proceeding in forma pauperis and $400.00 in all other

cases.

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(1997). However, in Wilkinson v. Dotson, 544 U.S. 74, 82 (2005), the Supreme Court clarified that
§1983 remains available to a state prisoner for procedural challenges where success in the action
would not necessarily spell immediate or speedier release for the prisoner. In this case, Petitioner
explicitly requests release from custody; therefore, he is barred from seeking relief under § 1983.
For the reasons set forth above, the Court will construe Petitioner’s action only as a
habeas corpus petition brought under 28 U.S.C. § 2241. The proper respondent in a habeas corpus
action is the state officer who has custody of Petitioner. See Rule 2(a), RULES GOVERNING § 2254
CASES. Petitioner is in the custody of Warden Linda Tribley at the Ojibway Correctional Facility.
Consequently, the Court will dismiss without prejudice the Michigan Parole Board, Jane Price and
Amy Bonito.
II.

Fourteenth Amendment Due Process

Plaintiff first claims that the parole board relied upon false and inaccurate information
in denying his parole. To establish a procedural due process violation, a plaintiff 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). Plaintiff 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).
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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, 1164-65 (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. The Sixth Circuit reiterated the continuing validity
of Sweeton in 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 Plaintiff has served his 20-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. Because Plaintiff has no liberty
interest in being paroled, he cannot show that the false or innacurate 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, 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
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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. 951778, 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). Consequently, the Parole Board’s alleged reliance on false or inaccurate information did
not violate Petitioner’s due process rights.
Moreover, because Petitioner has no liberty interest in parole, his lack of access to
a rehabilitative program required by the parole board fails to implicate the Due Process Clause.
Furthermore, federal courts have consistently found that prisoners have no constitutionally protected
liberty interest in prison rehabilitation programs based on the Fourteenth Amendment. See, e.g.,
Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (Due Process Clause not implicated by prisoner
classification and eligibility for rehabilitative programs, even where inmate suffers “grievous loss”);
Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1995) (participation in a rehabilitative program
is a privilege that the Due Process Clause does not guarantee); Rizzo v. Dawson, 778 F.2d 527, 531
(9th Cir. 1985) (no constitutional right to rehabilitative services). Petitioner, therefore, fails to state
a due process claim arising from the denial of his parole.
III.

First and Fifth Amendments

Petitioner alleges that his First Amendment right to freedom of speech and his Fifth
Amendment right against self-incrimination were violated when he was denied parole as a result of
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his refusal to admit guilt to an offense(s) for which he was not convicted. At this stage of the
proceedings, the Court lacks sufficient information to decide Petitioner’s claims. Accordingly, the
Court will order Respondent Tribley to answer the petition and provide relevant Rule 5 materials
with regard to Petitioner’s First and Fifth Amendment claims
Conclusion
In light of the foregoing, the Court will dismiss Petitioner’s Fourteenth Amendment
due process claims pursuant to Rule 4 because they fail to raise a meritorious federal claim. The
Court also will dismiss the Michigan Parole Board, Jane Price and Amy Bonito without prejudice
because they are not proper Respondents to this action. Respondent Tribley will be ordered to
answer the petition and provide relevant Rule 5 materials with regard to Petitioner’s First and Fifth
Amendment claims.
An Order consistent with this Opinion will be entered.

Dated:

1/28/2014

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

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