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Smith v. Barrett

United States District Court, E.D. Michigan, Southern Division

November 4, 2016

JEFFREY JOHN SMITH, Petitioner,
v.
JOSEPH BARRETT, Respondent.

          OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          Honorable Gershwin A. Drain

         Jefffrey John Smith, (“Petitioner”), presently incarcerated at the Cooper Street Correctional Facility in Jackson, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges the Michigan Parole Board's decision to deny him release on parole for his conviction for Operating Under the Influence of Liquor (OUIL), Third Offense, Mich. Comp. Laws, § 257.625. For the reasons stated below, the petition for writ of habeas corpus is SUMMARILY DENIED WITH PREJUDICE.

         I. Background

         Petitioner was convicted in the Barry County Circuit Court of OUIL, Third Offense and was sentenced to seventeen months to five years in prison.

         Petitioner was initially denied parole and given a twelve month continuance so that he could participate in a domestic violence class. The Michigan Department of Corrections prepared a parole guidelines worksheet, assessing petitioner with having a “high probability of parole.” Petitioner claims that he was interviewed by Ms. Abigail A. Callejas of the Michigan Parole Board on February 22, 2016. Petitioner asserts that on March 11, 2016, Ms. Callejas ordered an eighteen month continuance reasoning that petitioner lacked insight and minimized his domestic violence behavior.

         Petitioner has now filed a petition for writ of habeas corpus on the following ground: Petitioner was denied a fair hearing and equal protection when the Parole Board Member's decision was arbitrary and capricious.

         II. Discussion

         The petition for writ of habeas corpus must be dismissed because petitioner fails to state a claim upon which habeas relief can be granted.

         A petition for a writ of habeas corpus must set forth facts that give rise to a cause of action under federal law or it may summarily be dismissed. Perez v. Hemingway, 157 F.Supp.2d 790, 796 (E.D. Mich. 2001). Federal courts are also authorized to dismiss any habeas petition that appears legally insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856 (1994). A federal district court is authorized to summarily dismiss a habeas corpus petition if it plainly appears from the face of the petition or the exhibits that are attached to it that the petitioner is not entitled to federal habeas relief. See Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rules Governing § 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. The Sixth Circuit, in fact, long ago indicated that it “disapprove[s] the practice of issuing a show cause order [to the respondent] until after the District Court first has made a careful examination of the petition.” Allen v. Perini, 424 F.3d 134, 140 (6th Cir. 1970). A district court therefore has the duty to screen out any habeas corpus petition which lacks merit on its face. Id. at 141. No return to a habeas petition is necessary when the petition is frivolous, or obviously lacks merit, or where the necessary facts can be determined from the petition itself without consideration of a return by the state. Id.; see also Mahaday v. Cason, 222 F.Supp.2d 918, 919 (E.D. Mich. 2002)(“Under the federal statutes governing habeas corpus proceedings, an answer to a petition for habeas corpus is not required unless the court orders one.”).

         After undertaking the review required by Rule 4, this Court concludes that petitioner's parole denial claim does not entitle him to habeas relief and the petition must be summarily denied. See McIntosh v. Booker, 300 F.Supp.2d 498, 499 (E.D. Mich. 2004).

         As an initial matter, petitioner acknowledges that he has yet to present his claim to the Michigan courts. However, in light of the fact that Michigan law does not permit a prisoner to appeal an adverse decision by the Michigan Parole Board, petitioner's failure to exhaust his parole denial claim with the state courts is excusable. See Jackson v. Jamrog, 411 F.3d 615, 618 (6th Cir. 2005).

         Petitioner's primary claim is that he has wrongfully been denied release on parole. There is no constitutional right of a convicted person to be conditionally released before the expiration of a valid sentence. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979); see also Board of Pardons v. Allen, 482 U.S. 369, 377 n. 8 (1987). Stated more succinctly, there is no federal constitutional right to be paroled. See Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990); Lee v. Withrow, 76 F.Supp.2d 789, 792 (E.D. Mich. 1999). The Sixth Circuit has repeatedly held that Michigan's parole statute does not create a liberty interest for a prisoner to be paroled prior to the expiration of his or her sentence. See Crump v. Lafler, 657 F.3d 393, 404-05 (6th Cir. 2011); Foster v. Booker, 595 F.3d 353, 368 (6th Cir. 2010); Caldwell v. McNutt, 158 F.App'x. 739, 740-41 (6th Cir. 2006), Ward v. Stegall, 93 F.App'x. 805, 806-07 (6th Cir. 2004); Carnes v. Engler, 76 F.App'x. 79, 80 (6th Cir. 2003); Sweeton v. Brown, 27 F.3d 1162, 1164-165 (6th Cir.1994)(en banc).

         Petitioner further contends that the Michigan Parole Board violated his rights by ignoring the Michigan Parole Guidelines, which gave petitioner a high probability score for being paroled.

         The fact that petitioner received a high probability score for being paroled did not give rise to a protected liberty interest in petitioner being paroled. SeeCrump, 657 F.3d ...


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