United States District Court, E.D. Michigan, Southern Division
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
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.
was convicted in the Barry County Circuit Court of OUIL,
Third Offense and was sentenced to seventeen months to five
years in prison.
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
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.
petition for writ of habeas corpus must be dismissed because
petitioner fails to state a claim upon which habeas relief
can be granted.
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
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).
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).
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
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.
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 ...