United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF
D. BORMAN UNITED STATES DISTRICT JUDGE
Anthony Boyd filed this habeas corpus petition pursuant to 28
U.S.C. § 2241. Boyd states that the Michigan Department
of Corrections lodged a detainer against him in 2014 for an
alleged parole violation. He argues that this detainer makes
him ineligible to participate in the Federal Bureau of
Prisons' drug and alcohol program, and, consequently,
ineligible for earning a reduction in his sentence. He asks
the Court to order the State of Michigan to conduct a parole
the filing of a habeas corpus petition, the court must
promptly examine the petition to determine “if it
plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to
relief.” Rule 4, Rules Governing Section 2254 Cases. If
the court determines that the petitioner is not entitled to
relief, the court shall summarily dismiss the petition.
McFarland v. Scott, 512 U.S. 849, 856 (1994)
(“Federal courts are authorized to dismiss summarily
any habeas petition that appears legally insufficient on its
face”). The Rules Governing Section 2254 cases may be
applied at the discretion of the district court judge to
petitions under habeas statutes in addition to § 2254.
Rule 1(b), Rules Governing Section 2254 Cases. The habeas
petition does not present grounds which may establish the
violation of a federal constitutional right. The petition
will be dismissed.
currently serving a term of incarceration of 70 months for
attempted possession with intent to distribute 500 grams or
more of cocaine, a conviction obtained in the United States
District Court for the Southern District of Florida. On May
27, 2014, the Michigan Department of Corrections lodged a
detainer for Boyd for violation of his parole in connection
with a second-degree murder conviction, Wayne County No.
93-09926. Boyd is ineligible for the BOP's residential
drug and alcohol program until the detainer is lifted. He has
twice requested that the Michigan Department of Corrections
conduct a parole violation hearing so that the detainer will
be lifted. See Pet. at 8-10. The Michigan Department
of Corrections has advised Boyd that a parole violation
hearing will not be conducted until he has completed his
federal sentence. Id. Boyd alleges that the refusal
to conduct a parole violation hearing until he completes his
federal sentence violates his rights under the Due Process
Clause and his First Amendment right to petition the
government for redress of his grievances.
Morrissey v. Brewer, 408 U.S. 471, 481-84 (1972),
the Supreme Court held that individuals threatened with the
revocation of their parole possess a liberty interest that
entitles them to minimal due process protections. The Court
outlined a two-step process for preserving the minimum due
process requirements for parole revocation: a preliminary
hearing and a final hearing. Id. The preliminary
hearing, which must be held “promptly” after a
parolee is arrested and detained, is an informal inquiry
“to determine whether there is probable cause or
reasonable ground to believe that the arrested parolee has
committed acts that would constitute a violation of parole
conditions.” Id. at 485. Following a
preliminary hearing, the second stage is a final revocation
hearing. This hearing “must be the basis for more than
determining probable cause; it must lead to a final
evaluation of any contested relevant facts and consideration
of whether the facts as determined warrant revocation.”
Id. at 488.
contends that his due process rights were violated by the
lodging of the parole warrant as a detainer because he did
not receive a timely parole revocation hearing as required
under Morrissey. A parole revocation hearing must be
held “within a reasonable time after [a petitioner] is
taken into custody.” Id. “Custody,
” in the parole-violation detainer context, occurs only
when State authorities execute the underlying arrest warrant,
which has not yet occurred in this case. See Moody v.
Daggett, 429 U.S. 78, 87 (1976). Michigan authorities
may defer the warrant's execution until after Boyd's
federal sentence expires. See, e.g., Moody, 429 U.S.
at 87-88; see also Davis v. Stine, 2006 WL 1050069,
at *3 (E.D. Ky. April 20, 2006) (“There is nothing
impermissible in waiting until a parole or probation violator
is released from [another jurisdiction's] custody before
holding revocation proceedings.”). Because Boyd has
not, as yet, been arrested pursuant to the parole
violator's warrant, his due process rights under
Morrissey have not vested. See Moody, 429
U.S. at 86-87.
because Boyd's federal conviction by guilty plea provides
irrefutable evidence of a parole violation,
Morrissey's protections may never come into
play. Cf. Sneed v. Donahue, 993 F.2d 1239, 1241 (6th
Cir. 1993) (because parole decision maker had no discretion
but to revoke parole on the basis of a subsequent conviction,
Morrissey did not apply).
First Amendment claim is also meritless. The First Amendment
provides that Congress shall make no law abridging “the
right of the people ... to petition the Government for
redress of grievances.” U.S. Const. amend I. The right
to petition the government for redress of grievances is
“cut from the same cloth” as the other guarantees
in the First Amendment, and it is “an assurance of a
particular freedom of expression.” McDonald v.
Smith, 472 U.S. 479, 482 (1985). The purpose of the
right to petition is to guarantee that people “may
communicate their will” through direct petitions to
government officials and the legislature. McDonald,
472 U.S. at 482. But the right to petition the government
does not “guarantee ... the right to compel government
officials to act on or adopt a citizen's views.”
Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999).
Boyd exercised his right to petition by twice requesting that
the Michigan Parole Board conduct a parole revocation
hearing. The exercise of that right did not create an
obligation for the Parole Board to respond in a particular
way, or at all. Boyd's rights under the First Amendment
were not violated.
the Court DISMISSES the petition for a writ
of habeas corpus.
Petitioner may appeal the Court's decision, a certificate
of appealability (COA) must issue. See 28 U.S.C.
§ 2253(c)(1)(a); Fed. R. App. P. 22(b). A COA may issue
only if the petitioner makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find
the court's assessment of the claim debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
Jurists of reason would not find the Court's decision
debatable. Accordingly, the Court DENIES a
certificate of appealability.