UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BRADY SMITH,

Plaintiff,

v.

BARBARA SAMPSON, et al., 

Defendants.

 /

CASE NUMBER: 08-14002

HON. MARIANNE O. BATTANI

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING 

 DEFENDANTS’ MOTIONS TO DISMISS/SUMMARY JUDGMENT

Plaintiff Brady Smith is a state prisoner serving a life sentence without the possibility

of parole. He filed this action pro se alleging that changes to state law governing parole

violate his constitutional rights. Now before the Court are Plaintiffs' Objections to Magistrate

Judge’s Report and Recommendation and Order Staying Discovery. 

The Court has reviewed the pleadings and finds oral argument will not aid in the

resolution of this motion. See E. D. Mich. LR 7.1(e)(2). For the reasons that follow, the

Court finds Plaintiff's objections lack merit and GRANTS Defendants' motions to dismiss.

I. INTRODUCTION

After the Court referred this action to Magistrate Judge Virginia M. Morgan for all

pretrial proceedings, Defendants Laurin Thomas, Barbara Sampson, Miguel Berrios, James

Attenberry, Stephen H. Deboer, Artina Tinsley Hardman, Sharee Booker, and James Quinlan

filed a Motion to Dismiss/Summary Judgment (Doc. No. 30). Defendants John Schlinker and

Enid Livingston subsequently filed a motion joining their co-Defendants’ motion and

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supporting brief (Doc. No. 36). Defendants also asked the Court to stay discovery until a

ruling was issued on the dispositive motions (Doc. No. 41).

In a Report and Recommendation ("R&R") dated August 6, 2009, Magistrate Judge

Morgan recommended that Defendants' motions be granted, and that Plaintiff’s Complaint

be dismissed for failure to state a claim upon which relief may be granted (see Doc. No. 45,

R&R at 2). In the event that this Court rejected the recommendation to dismiss Plaintiff's

Complaint, the Magistrate Judge recommended that the request for summary judgment be

denied as premature and that discovery proceed. 

In his objections, Smith challenges the Magistrate Judge’s finding that because

“commutation is a matter of discretion for the Governor of the State of Michigan,” Plaintiff’s

Ex Post Facto claim is precluded. See R&R at15-9. He also challenges the recommendation

to decide the motion prior to discovery. 

II. STANDARD OF REVIEW

Pursuant to statute, this court's standard of review for a magistrate judge's report and

recommendation requires the following:

A judge of the court shall make a de novo determination of those portions of the report

or specified proposed findings or recommendations to which objection is made. A

judge of the court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.

28 U.S.C. § 636(b)(1)(C).

III. ANALYSIS

The basis of Smith's claim is that the commutative effect of changes in state law have

impaired his opportunity for commutation in violation of the Ex Post Facto Clause of the

United States Constitution. U.S. CONST. art. I §§ 9, 10. The Ex Post Facto Clause bars

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enactments which, by retroactive operation, increase the punishment for a crime after its

commission, including laws governing the parole of prisoners. See Lynce v. Mathis, 519

U.S. 433, 445-446 (1997) (citing Weaver v. Graham, 450 U.S. 24, 32 (1981)); California

Dept. Of Corrections v. Morales, 514 U.S. 499, 508-509 (1995). A violation occurs when a

change in the law been given a retrospective effect; and the change disadvantages the

offender. Weaver, 450 U.S. at 29. 

In Garner v. Jones, 529 U.S. 244 (2000), the Supreme Court found that even if the

requisite risk was not inherent in the framework of an amended rule, a prisoner could show

“by evidence drawn from the rule's practical implementation by the agency charged with

exercising discretion, that its retroactive application will result in a longer period of

incarceration than under the earlier rule.” Id. at 255. Smith maintains that he is entitled to

discovery pursuant to Garner, and he concludes that a decision on the merits is premature.

 The Court finds Garner distinguishable given the differences in the discretionary

authority of the parole board and the governor. In assessing the viability of Plaintiff's claims,

this Court finds the Magistrate Judge properly examined the degree of discretion afforded the

governor in deciding whether to commute a sentence. After reviewing the state constitution

and case law, this Court agrees with the Magistrate Judge that the governor's discretion

cannot be overstated. 

Under the state constitution, "The governor shall have power to grant reprieves,

commutations and pardons after convictions for all offenses, except cases of impeachment,

upon such conditions and limitations as [s]he may direct, subject to procedures and

regulations as prescribed by law." MICH. CONST. 1963, art. 5, § 14. Based on the language

in § 14, the Michigan Supreme Court has held that the governor alone holds the power to

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commute a sentence. People v. Freleigh, 54 N.W. 599, 601(Mich. 1952). Moreover, the

Michigan Supreme Court has held that enactment of any law restricting " the power would

be unconstitutional and void." Rich v. Chamberlain, 62 N.W. 584, 587 (Mich. 1895). The

Michigan courts have acknowledged the exclusivity in subsequent cases, noting that the trial

court lacks authority to set aside an valid sentence and impose a new one because such

action "infinge[s]" on the governor's power as articulated in the state constitution. People v.

Whalen, 312 N.W.2d 638 (Mich. 1981), People v. Fox, 20 N.W.2d 732, 733 (Mich. 1945).

Finally, “[t]he constitution by implication forbids the judiciary to commute a sentence. It does

not enable the legislature to pass a law that will infringe upon the exclusive power of the

governor to commute a sentence.” Freleigh, 54 N.W.2d at 601. In sum, in Michigan, the

governor's power to commute a sentence is unchecked by the judiciary and the legislature.

The Magistrate Judge did not rely exclusively on state authority in reaching her

recommendation. She also considered federal authority, albeit nonbinding. In Snodgrass

v. Robinson, 512 F.3d 999 (8th Cir. 2008), the appellate court considered an argument

similar to Smith's, challenging changes to Iowa law. The Iowa constitution grants the

governor of the state the power to commute sentences, “subject to such regulations as may

be provided by law.” Iowa Const. Art. IV, § 16. In ascertaining the degree of discretion held

by the governor, the federal court noted that not only had there never been a restriction on

the governor's ability to commute sentences enacted, a prohibition on such a restriction had

been enacted. See Iowa Code § 914.1 (2007) (“The power of the Governor. . .to grant a. .

.commutation of sentence. . .shall not be impaired.”). Consequently, the Snodgrass Court

deemed the "Iowa governor's power to commute sentences as substantively unfettered." 

Id. at 1001.

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This Court finds the authority granted to the Michigan governor likewise is

"substantively unfettered." This finding is not undermined by the authority granted to the

Michigan Parole Board to interview an application for commutation and transmit a formal

recommendation to the governor. See MICH. COMP. LAWS § 791.243. In reviewing a similar

statutory scheme, the Snodgrass Court found the ability of the parole board to review files,

interview prisoners, and make recommendation to the governor did not constitute a

restriction on the governor's authority to commute sentences. 512 F.3d at 1001 (citing Iowa

Code § 902.2 (2007)). The reasoning is persuasive. 

This is because most parole procedures are distinct from the highly personal,

policy oriented, and legislatively unchecked authority of the Iowa governor to

grant sentence commutations. In the present case, there are no statutory

“shalls” restricting the Iowa governor's discretion or providing benchmarks by

which a reviewing court might conduct an analysis of the likelihood that

changes in the law will create a significant risk of increased punishment.

Snodgrass, 512 F.3d at 1002 n.2. 

Consequently, the sufficiency of Plaintiff’s factual allegations are not the basis for

dismissal of his Complaint, and the Court rejects Plaintiff’s assertion that the case cannot be

decided without looking to matters outside the pleadings. Specifically, Smith contends that

he may uncover information that the governors of Michigan have a custom and practice of

following the parole board's recommendations for commutations, the information is

immaterial. 

Here, the Court's decision is based upon a review of the law. The particular facts of

Smith's case are immaterial given the scope of the governor of Michigan's authority to grant

commutation, see Lewis-El v. Simpson, No. 08-10560 (E.D. Mich. December 16, 2008 )

(Steeh, J.) (dismissing a similar claim under 28 U.S.C. § 1915), as reflected by the language

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in the state constitution, case law, and the state statutes. The impact of any change in the

law governing parole will never be more than speculative relative to the governor's exercise

of her right to commute sentences. Therefore, Plaintiff cannot show that the change creates

a "significant risk" that he will be denied a commutation. 

IV. CONCLUSION

Accordingly, the Court GRANTS Defendants' motions.

IT IS SO ORDERED.

s/Marianne O. Battani 

 MARIANNE O. BATTANI

 UNITED STATES DISTRICT JUDGE 

Dated: September 17, 2009

CERTIFICATE OF SERVICE

Copies of this Order were mailed to Plaintiff and counsel of record on this date by

ordinary mail and/or electronic filing.

s/Bernadette M. Thebolt

Case Manager

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