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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RICHARD D. WHITE,

Petitioner,

 CASE NO. 2:09-CV-10036

v. HONORABLE MARIANNE O. BATTANI

THOMAS K. BELL,

Respondent.

________________________________/

OPINION AND ORDER (1) DISMISSING PETITION FOR WRIT OF HABEAS

CORPUS AND (2) DENYING A CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. Introduction

Richard D. White (“Petitioner”), a state prisoner presently confined at the Parr Highway

Correctional Facility in Adrian, Michigan, has filed a pro se petition for writ of habeas corpus

pursuant to 28 U.S.C. §§ 2241 and 2254 challenging the Michigan Parole Board’s decision to

deny him parole. Petitioner pleaded nolo contendere to third-degree criminal sexual conduct in

the Newaygo County Circuit Court and was sentenced to five to 15 years imprisonment in 2002. 

Petitioner states that the Michigan Parole Board denied him parole on December 15, 2008 and

ordered an 18-month continuance. Petitioner asserts that the Michigan Parole Board violated

state law and his due process rights by failing to provide him with a written decision of

substantial and compelling reasons for denying him parole.

Promptly after the filing of a petition for habeas corpus, the Court must undertake a

preliminary review of the petition to determine whether “it plainly appears from the face of the

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petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district

court.” Rule 4, RULES GOVERNING § 2254 CASES; see also 28 U.S.C. § 2243. If, after

preliminary consideration, the Court determines that the petitioner is not entitled to relief, the

Court must summarily dismiss the petition. Id., Allen v. Perini, 424 F.2d 134, 141 (6th Cir.

1970) (district court has the duty to “screen out” petitions that lack merit on their face). A

dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as

those containing factual allegations that are palpably incredible or false. See Carson v. Burke,

178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the

Court concludes that the petition for writ of habeas corpus must be dismissed.

II. Discussion

Petitioner asserts that the Michigan Parole Board has violated state law in denying him

parole. To warrant federal habeas relief, however, a petitioner must show that he or she “is in

custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2254. 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). Accordingly, to the

extent that Petitioner asserts a violation of Michigan law, he is not entitled to habeas relief.

Petitioner also alleges a violation of his federal due process rights. The Fourteenth

Amendment to the United States Constitution provides, in part: “nor shall any State deprive any

person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV. As

the United States Supreme Court has explained, the Fourteenth Amendment protects “the

individual against arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558

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(1974). The Supreme Court has definitively held that there is no right under the United States

Constitution of a lawfully convicted person to be conditionally released before the expiration of

a valid sentence. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442

U.S. 1, 7 (1979); see also Kentucky Dep’t. of Corr. v. Thompson, 490 U.S. 454, 460 (1989). 

Simply stated, there is no federal constitutional right to parole. See Gavin v. Wells, 914 F.2d 97,

98 (6th Cir. 1990).

While there is no federal constitutional right to parole, the Supreme Court has held that a

convicted person may have a liberty interest created by a State’s laws, a liberty interest which is

subject to constitutional protection. See Thompson, 490 U.S. at 460 (citing Hewitt v. Helms, 459

U.S. 460, 466 (1983)). In deciding whether a liberty interest arises under the laws of a State, the

Supreme Court closely examines the language of the State’s relevant statutes and regulations. 

Id. at 461. “Stated simply,” the Court explained, “‘a State creates a protected liberty interest by

placing substantive limitations on official discretion.’” Id. at 462 (quoting Olim v. Wakinekona,

461 U.S. 238, 249 (1983)). As the Court further advised:

“A state may do this in a number of ways . . . the most common manner in which

a State creates a liberty interest is by establishing “substantive predicates” to

govern official decision-making . . . and, further, by mandating the outcome to be

reached upon a finding that the relevant criteria have been met.

Id. (citing Hewitt, 459 U.S. at 472). In order to find that a liberty interest arises under a State’s

laws, the Court has required “that the regulations contain ‘explicitly mandatory language,’ i.e.,

specific directives to the decisionmaker that if the regulations’ substantive predicates are present,

a particular outcome must follow.” Id. (quoting Hewitt, 459 U.S. at 471-72).

Applying these standards, the Michigan Court of Appeals and the courts within the Sixth

Circuit have concluded that a liberty interest in parole does not arise under Michigan law. See

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The Court notes that a prisoner who does not seek immediate release on parole may

challenge the procedures used by a parole board to deny him or parole under 42 U.S.C. § 1983

after the exhaustion of available state remedies. See Wilkinson v. Dotson, 544 U.S. 74, 83

(2005); see also Thomas v. Eby, 481 F.3d 434, 439-40 (6th Cir. 2007) (a plaintiff’s challenge to

parole procedures may proceed under § 1983 because it does not automatically imply a shorter

sentence). The Court makes no determination as to the merits of any such action.

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Hurst v. Dep’t. of Corr. Parole Bd., 119 Mich. App. 25, 29, 325 N.W.2d 615, 617 (1982); Juarez

v. Renico, 149 F. Supp. 2d 319, 322 (E.D. Mich. 2001); Lee v. Withrow, 76 F. Supp. 2d 789, 792

(E.D. Mich. 1999). The Hurst court found that Michigan’s parole statute provides that a prisoner

shall not be released until his minimum term of imprisonment has been served, but that it allows

an early parole as an exception to the minimum term provision. Hurst, 119 Mich. App. at 29,

325 N.W.2d at 617. While the statute provides factors for the Parole Board to consider, it does

not mandate parole if certain criteria are met. Id. The Michigan Court of Appeals concluded

that the State’s statute “creates only a hope of early release,” rather than a right to release. Id.

As Petitioner has no protected liberty interest in parole, his due process claims are not

cognizable on federal habeas review. Petitioner has neither alleged nor established that he is

being held beyond the expiration of his sentence. Habeas relief is not warranted in this case.1

III. Conclusion

For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas

relief on his claims and that the petition must therefore be denied.

Before Petitioner may appeal this Court’s dispositive decision, a certificate of

appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of

appealability may issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim on the merits,

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the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists

would find the district court’s assessment of the constitutional claim debatable or wrong. See

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by

demonstrating that . . . jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In

applying this standard, a district court may not conduct a full merits review, but must limit its

examination to a threshold inquiry into the underlying merit of the petitioner’s claims. Id. at

336-37.

Having considered the matter, the Court concludes that Petitioner has failed to make a

substantial showing of the denial of a constitutional right such that a certificate of appealability

is not warranted. The Court further concludes that Petitioner should not be granted leave to

proceed on appeal in forma pauperis. as any appeal would be frivolous. See Fed. R. App. P.

24(a).

Accordingly;

IT IS ORDERED that the petition for writ of habeas corpus is DENIED.

IT IS FURTHER ORDERED that a certificate of appealability and leave to proceed on

appeal in forma pauperis are DENIED.

 

s/Marianne O. Battani

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

Dated: January 27, 2009

CERTIFICATE OF SERVICE

I hereby certify that on the above date a copy of this opinion and order was

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served upon Petitioner, Richard White via U.S. Mail.

s/Bernadette M. Thebolt

Case Manager

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