Opinion
Case No. 00-CV-10488-BC
July 5, 2002
James Young, [COR LD NTC pro] [PRO SE], St. Louis, MI., for petitioner.
Brenda E. Turner, Bethany L. Scheib, PENDING APP, [COR LD NTC ret], Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI.
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, James G. Young, presently confined at the Pine River Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and the All Writs Act, 28 U.S.C. § 1651. In his application, filed pro se, the petitioner attacks the Michigan Parole Board's denial of his release on parole, resulting in his continued confinement. The petitioner's application does not entitle him to habeas relief and the petition shall be denied with prejudice for the reasons stated in this Court's opinion in Juarez v. Renico, 149 F. Supp.2d 319 (E.D. Mich. 2001).
I.
Young was convicted in 1992 of arson, Mich. Comp. Laws § 750.73, and criminal sexual conduct (CSC) in the fourth degree, Mich. Comp. Laws § 750.520e. The trial court sentenced petitioner to a term of one and a half to ten years in prison for the arson conviction and to a consecutive term of one to two years in prison for the CSC conviction.
On January 26, 2001, Young lifed the pending habeas corpus petition in which he challenges the Michigan Parole Board's decision to deny release on parole. He seeks declaratory and injunctive relief including release on parole within thirty days or a parole interview by a neutral and detached parole board within thirty days. The respondent argues in an answer to the habeas petition that the petitioner's claim lacks merit and is not cognizable on habeas review.
Although the petitioner apparently did not raise his claims in state court, the respondent has not defended on the ground that the petitioner failed to exhaust state court remedies for his claims pursuant to 28 U.S.C. § 2254 (b)(1)(A). Exhaustion of state remedies is not required when, as here, the Court concludes that it must deny the habeas petition. 28 U.S.C. § 2254 (b)(2). Alternatively, the Court deems the petitioner's claims exhausted because there apparently "is an absence of available State corrective process." 28 U.S.C. § 2254(b)(1)(B)(i). A prisoner's right to appeal parole decisions has been eliminated. See Mich. Comp. Laws § 791.234(9); Staff Comment to 2000 Amendment to Mich. Ct. R. 7.104(D).
II.
Young alleges that the Michigan Parole Board has declined to release him on parole seven times. His sole ground for relief is that the Parole Board's decision to deny parole is invalid because the Parole Board is not a neutral and detached decisionmaker. According to Young, Parole Board members are biased in that they have a pecuniary interest in denying parole to prisoners who have been convicted of a sex offense.Young's argument is based on Mich. Comp. Laws § 791.231a (1992), which established a parole board consisting of ten members who are appointed by the Director of the Michigan Department of Corrections. Parole Board members receive an annual salary established by the state legislature. They no longer receive the protections afforded state civil service employees. Instead, the Director may remove Parole Board members for incompetency, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office. Mich. Comp. Laws § 791.23la(1)-(3).
The petitioner alleges that, following enactment of § 791.231 a in 1992, the Director appointed Parole Board members who were inclined to deny parole to sex offenders more frequently than their predecessors. The petitioner asserts that, because Parole Board members can be fired by the Director, they have a pecuniary interest in carrying out the Director's penchant for denying parole to sex offenders.
This same argument was raised by the petitioner and rejected by the Court in Juarez. There, we explained that prisoners have no inherent right to parole under the Constitution, Board of Pardons v. Allen, 482 U.S. 369, 373 (1987); Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979), or under state law, Mich. Comp. Laws § 791.234(9) (stating that "a prisoner's release on parole is discretionary with the parole board"). Thus, a prisoner has no protected liberty interest in parole. Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc). Although the petitioner cites Morrissey v. Brewer, 408 U.S. 471, 489 (1972), for the proposition that he had a right to a "`neutral and detached' hearing body," the due process protections announced in Morrissey involved revocation of parole. The petitioner's case involves denial of parole. See Juarez, 149 F. Supp.2d at 322-23.
The Court recognizes that those with substantial pecuniary interest in legal proceedings should not adjudicate administrative disputes. Gibson v. Berryhill, 411 U.S. 564, 579 (1973) (citing Tumey v. Ohio, 273 U.S. 510 (1927)). "The administrative process `requires the appearance of fairness and the absence of a probability of outside influences on the adjudicator.'" Hammond v. Baldwin, 866 F.2d 172, 176 (6th Cir. 1989) (quoting Utica Packing Co. v. Block, 781 F.2d 71, 77 (6th Cir. 1986)). "It is true that `[s]ubmission to a fatally biased decisionmaking process is in itself a constitutional injury sufficient to warrant injunctive relief'" Id. (quoting United Church of the Med.l Ctr. v. Med. Ctr. comm'n, 689 F.2d 693, 701 (7th Cir. 1982)).
However, "the cases in which a bias has been found to exist, in violation of due process, involve one of two characteristics: either the decisionmakers derived a direct, pecuniary interest from decisions adverse to claimants or the decisionmaker was engaged in both adjudicative and executive functions in violation of the principle of separation of powers." Id. at 177 (citations omitted). The decisionmakers in this case were not engaged in both adjudicative and executive functions. Their duties were adjudicative. The issue, therefore, is whether "the decisionmakers derived a direct, pecuniary interest from decisions adverse to [the petitioner]." Id.
Parole Board members may be removed from their salaried positions for "incompetency, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office." Mich. Comp. Laws § 791.231 a (2). As the respondent points out, civil service employees maybe fired for equally broad reasons such as failing to carry out their duties and obligations, for unsatisfactory service, or for conduct unbecoming a state employee. Thus, the fact that Parole Board members no longer are civil service employees does not give the Director greater discretion in firing them and does not make them more amenable to political influence. The bias alleged by the petitioner is the "general tendency of an administrative agency to serve the executive under which it derives its authority," and a general bias in favor of the alleged state interest or policy is an insufficient basis for disqualifying decisionmakers. Hammond, 866 F.2d at 176-177.
Furthermore, there is no basis to conclude here, as there was no such basis in Juarez, see 149 F. Supp.2d at 324. that the Parole Board's decision was the direct result of a pecuniary interest in denying parole. The petitioner acknowledges that other prisoners have been released on parole since 1992. See Petition for Writ of Habeas Corpus at 4, ¶ 11-12.
Furthermore, the petitioner has a prior record of seven felonies and nine misdemeanors. His criminal history includes previous sexual crimes, progressively more dangerous behavior, crimes involving behavior similar to a current offense, and weapons. As of October 30, 2000, when the Parole Board last interviewed the petitioner, his assaultive risk level was high or very high, an indication that he had a high probability of committing a new violent offense on parole. The petitioner's sexually motivated crime involved substance abuse, a family member or acquaintance, and use of a weapon. His property crime involved arson. His educational programming is incomplete due to disciplinary reasons.
III.
Neither of the characteristics needed to show bias (a direct, pecuniary interest in making a decision adverse to the claimant or violation of the principle of separation of powers) is present here. Consequently, even assuming that Young had a protected liberty interest in parole, no violation of due process occurred. Thus, Young has not demonstrated that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3).
Accordingly, it is ORDERED that the application for the writ of habeas corpus is DENIED.
The Court declines to issue a certificate of appealability because certificates of appealability are not needed to appeal the denial of a habeas petition under 28 U.S.C. § 2241. See 28 U.S.C.A. § 2253(c)(1); Forde it United States Parole Comm'n, 114 F.3d 878, 879 (9th Cir. 1997); Ojo v. INS, 106 F.3d 680, 681-82 (5th Cir. 1997); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).