United States District Court, E.D. Michigan, Northern DivisionOct 30, 2002
Case No. 00-10469-BC (E.D. Mich. Oct. 30, 2002)

Case No. 00-10469-BC.

October 30, 2002


The petitioner, Mark Shane Rager, a state prisoner presently paroled through the Muskegon County Parole Office in Muskegon, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he has been denied parole in violation of his state and federal rights. The petitioner appears to assert that his parole revocation violated his due process rights under the Fourteenth Amendment to the United States Constitution, and that he was improperly denied parole subsequent to that revocation. The Court disagrees, and will deny the petition.


The petitioner was convicted of second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520c(1)(a), and being a second felony habitual offender, Mich. Comp. Laws § 769.10, upon his guilty plea in the Muskegon County Circuit Court. He was sentenced in 1990 to a term of incarceration of six to twenty-two and one-half years imprisonment. The facts underlying the petitioner's conviction involve the petitioner sexually assaulting his girlfriend's nine-year-old daughter. The petitioner put his hand under the child's nightgown and inserted a finger into her vagina after he had been consuming alcohol. The petitioner has a history of abusing alcohol, including three arrests for operating a vehicle under the influence of alcohol prior to the conviction in this case. The petitioner does not challenge his conviction or sentence in this action.

The petitioner filed the instant petition for writ of habeas corpus on December 11, 2000, asserting that the Michigan Parole Board's 2000 decision to revoke his parole and subsequent decisions denying him parole violated his state and federal rights.


The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because the petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (1996).

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court undertook a detailed analysis of the correct standard of review under the AEDPA. According to the Supreme Court:

Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined the by Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Id. at 376, 407 (O'Connor, J., delivering the opinion of the Court on this issue).

In evaluating a state court decision under the "unreasonable application" clause, a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1522. "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.

The Supreme Court also clarified that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers only to "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Id. at 1523. In determining what constitutes clearly established federal law, therefore, a federal habeas court is restricted to pertinent United States Supreme Court precedent.

Lastly, § 2254(e)(1) requires that federal courts presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

II. A.

The petitioner claims that he was paroled on February 13, 1996 after serving six years on his sentence. The petitioner was given a twenty-four month parole term. The petitioner was charged with testing positive for THC on July 17, 1997. On August 18, 1997, the petitioner was arrested for operating a motor vehicle under the influence of liquor. On October 3, 1997, the petitioner's parole was revoked and his prison term was continued for a twelve months. The petitioner was also considered for and denied parole in July, 1998, June, 1999, May, 2000, and May, 2001.

Sometime around August, 2000, the petitioner filed a Delayed Petition for Judicial Review in the Circuit Court for the County of Muskegon, challenging the actions of the Michigan Parole Board in denying him release on parole. On October 3, 2000, the circuit court denied the petition "without further review because MCL 791.234(9), MSA 28.2304(9), as amended by PA 191 of 1999, eliminated the right of prisoners to appeal a denial of parole occurring on or after March 10, 2000." Rager v. Parole Board, 00-40406-AZ.

The petitioner claims that he has been denied access to the Michigan courts to challenge the allegedly arbitrary and capricious actions of the parole board. The petitioner further contends that his release on parole created a protected liberty interest which was violated when his parole was revoked.

To the extent that the petitioner challenges the 1997 revocation of his parole release, his claim lacks merit. In Morrissey v. Brewer, 408 U.S. 471 (1972), the United States Supreme Court recognized a protected liberty interest under the Due Process Clause of the Fourteenth Amendment in continued enjoyment of parole release status. The Supreme Court set forth the minimum procedural standards which a parolee must be accorded before his or her parole may be revoked. Specifically, due process requires that the parolee be given a preliminary hearing to determine whether probable cause exists to support the parole violation charge, and an opportunity for a hearing before a neutral factfinder prior to any decision to revoke parole. Procedures required at the parole revocation hearing include written notice of the claimed violation(s) of parole; disclosure to the parolee of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence, both concerning the truth of the parole revocation charges and whether mitigating circumstances are present; the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing confrontation); and a written statement by the factfinder of the evidence relied on and the reasons for revoking parole. The neutral factfinder need not be a judicial officer or attorney. Id. at 486-89.

In the present case, review of the record shows that the due process requirements established by Morrissey were satisfied. The petitioner was charged with violating the conditions of his parole in July and August of 1997. The petitioner waived his right to a preliminary hearing regarding both the July and August violations.

He was given timely and adequate notice of the parole violation charges and waived his right to a fact-finding hearing. After his July violation, the petitioner sought and received substance abuse treatment. However, the petitioner committed additional violations in August, 1997. The petitioner received adequate and timely notice of these charges as well. The petitioner eventually pleaded guilty to various parole violation charges on September 27, 1997 at an arraignment, including charges of using THC, consuming alcohol, and operating a vehicle under the influence of liquor. It should also be noted that the petitioner tested positive for THC on May 6, 1996, June 5, 1996, June 26, 1996, July 8, 1996, July 22, 1996, September 3, 1996, October 22, 1996, January 22, 1997, April 25, 1997, May 16, 1997, and July 16, 1997. These positive results for THC indicate a long-term pattern of drug use and parole violations, and cannot reasonably be attributed to a single ingestion of the drug which caused repeated positive tests. The petitioner waived his right to a fact-finding hearing on the charges. The procedures which resulted in the revocation of the petitioner's parole in October, 1997 complied with the due process requirements of Morrissey. Consequently, the petitioner's challenge to his parole revocation lacks merit.


The petitioner contends that the parole board abused its discretion in denying him parole release in 1998, 1999, 2000, and 2001. The petitioner attempted seek judicial review in the Michigan courts of the May 15, 2000, denial of his parole, but was denied review pursuant to Mich. Comp. Laws § 791.234(9), which eliminated the right of prisoners to appeal a denial of parole occurring on or after March 10, 2000.

The petitioner asserts that the Michigan Parole Board has improperly denied him parole in violation of state and federal law. To the extent that the petitioner asserts a violation of Michigan law, he is not entitled to habeas relief. It is well established that "`federal habeas corpus relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); see also Floyd v. Alexander, 148 F.3d 615, 619 (6th Cir. 1998) (concluding that violation of state law is not cognizable in federal habeas corpus proceedings). The petitioner is thus not entitled to relief based upon his perceived violations of state law.

The petitioner also alleges that the Michigan Parole Board's decisions denying him parole violated his federal rights. The petitioner disputes that his long history of substance abuse while on parole, including alcohol abuse (which, according to his parole violation arraignment summary and recommendation, was involved in his underlying offense of criminal sexual conduct), provides a sufficient basis for the parole board to reasonably deny him release on parole.

Absent extraordinary circumstances, however, a decision of the Michigan Parole Board denying release is not reviewable by this Court. Prisoners in Michigan have no right to parole, and therefore have no right to due process during their parole hearings. Juarez v. Renico, 149 F. Supp.2d 319, 322 (E.D.Mich. 2001). The petitioner is not entitled to relief on this claim.


Because he has no right to parole in the first instance, and because he received adequate due process on the occasion his parole was revoked, the petitioner has failed to demonstrate that he is in custody in violation of the laws of the United States.

Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED.