UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

HENRY REED,

Plaintiff,

Case Number 08-14380

v. Honorable Thomas L. Ludington

BARBARA SAMPSON, Chairperson

Michigan State Parole Board, et al.,

Defendants.

______________________________________/

ORDER ADOPTING IN PART AND REJECTING IN PART THE REPORT AND

RECOMMENDATION, SUSTAINING IN PART AND OVERRULING IN PART

PLAINTIFF’S OBJECTION, GRANTING DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT, DISMISSING COMPLAINT WITH PREJUDICE, AND DENYING

PLAINTIFF’S MOTION FOR REASSIGNMENT

On October 15, 2008, Plaintiff Harry Reed filed a complaint, alleging that post-conviction

changes to commutation procedures violated his ex post facto rights pursuant to 42 U.S.C. § 1983.

On February 25, 2009, Magistrate Judge Donald A. Scheer issued a report and recommendation that

Defendants’ motion for summary judgment be granted because Plaintiff was challenging the

constitutionality of his confinement and he must proceed with a petition for writ of habeas corpus.

Plaintiff timely objected. While the Court disagrees with the magistrate judge’s reasoning, the Court

will ADOPT the recommendation to GRANT Defendants’ motion for summary judgment for an

alternative reason. The Court will also DENY Plaintiff’s motion for reassignment.

A 

 According to the complaint, Plaintiff was sentenced to serve a mandatory non-parolable life

sentence for first degree murder and other related felonies in 1973. Plaintiff alleges members of the

parole board are violating his rights because they are not making a recommendation to the Governor

regarding commutation. Plaintiff asserts that at the time of his conviction the “Guideline for

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Commutation Recommendation Policy Directive” (“PD-DWA-45.12”) established procedures for

determining eligibility for commuting a non-parolable sentence. In 1992, however, the parole board

rescinded PD-DWA-45.12, which Plaintiff contends would have lead to his release in 2000. Rather,

he remains incarcerated and the parole board has yet to make a recommendation – positive or

negative – to the governor. Plaintiff’s complaint seeks declaratory and monetary relief pursuant to

42 U.S.C. § 1983 for violating his rights under the Ex Post Facto Clause of the United States

Constitution.

On December 26, 2008, Defendants moved for summary judgment. Dkt. # 20. Defendants

emphasize that the Governor, and not the parole board, is the final decisionmaker with respect to

commutation. Moreover, Defendants argue that the record indicates that commutations have

increased over the past 30 years and Plaintiff can not establish a negative effect resulting from a

change in law or policy of the parole board. Lastly, Defendants contend that Plaintiff has not

applied for commutation and that a 2006 review of Plaintiff’s file convinced the parole board that

commutation was inappropriate based on a variety of factors.

B

Plaintiff’s pleadings indicate that there are two general classes of related cases pending

before this Court. First, a group of Michigan prisoners serving life sentences with the possibility

of parole initiated a class action, alleging that the parole board was not applying parole procedures.

See Foster Bey v. Rubitschun, 05-71318, 2007 U.S. Dist. LEXIS 95748 (E.D. Mich. October 23,

2007) and Lynch-Bey v. Caruso, 05-72378, U.S. Dist. LEXIS 14889 (E.D. Mich. February 28,

2008). In Foster Bey, Judge Marianne O. Battani certified a class action and entered a declaratory

judgment in favor of the plaintiffs requiring the parole board to follow parole policies. 

Plaintiff contends that his case should be reassigned to Judge Battani and consolidated with

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Foster Bey. Dkt. # 18. The Court disagrees with Plaintiff. Companion cases have “substantially

similar evidence” or “arise out of the same transaction or occurrence.” E.D. Mich. LR

83.11(b)(7)(A). The class in Foster Bey includes “[a]ll parolable lifers in the custody of the

Michigan Department of Corrections who committed crimes (for which they received a parolable

life sentence) before October 1, 1992.” 2007 U.S. Dist. LEXIS 95748 at * 5. Here, Plaintiff

acknowledges that he is serving a mandatory life sentence without the possibility of parole and is

challenging commutation procedures, not parole procedures. Dkt. # 26 at 3. These distinctions

indicate that Plaintiff’s circumstance is distinct from the class in Foster Bey and reassignment or

consolidation is inappropriate. 

Plaintiff also refers to two other complaints pending before this Court that are “identical.”

Dkt. # 23 at 10 n.5 (citing Smith v. Simpson, 08-14002 (Battani, J.) and Lewis-El v. Simpson,

08-15060, (Steeh, J.)). Indeed, the plaintiffs in each of those cases are serving mandatory life

sentences without the possibility of parole and advance the same legal theory as in the present case.

Despite the similarity, reassignment is not warranted in this situation. The other complaints have

received attention from Judges Battani and Steeh, respectively. Based on the present posture of this

case, judicial economy is not served by reassigning the case. Thus, the Court will deny Plaintiff’s

motion for reassignment. 

C

Turning to the substantive issue addressed in the report and recommendation, the magistrate

judge concluded that Plaintiff must proceed by petition for a writ of habeas corpus because he was

challenging the constitutionality of his confinement. Dkt. # 24 at 3 (citing Preiser v. Rodriquez, 411

U.S. 475, 500 (1973)). While that proposition is generally applicable, a prisoner that challenges

parole or commutation procedures when not seeking immediate release is appropriately framed as

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a claim under 42 U.S.C. § 1983. See Wilkinson v. Dotson, 544 U.S. 74, 83 (2005); see also Thomas

v. Eby, 481 F.3d 434, 439-40 (6th Cir. 2007) (challenge to parole procedures may proceed under §

1983 because it does not automatically imply a shorter sentence); see also Woodard v. Ohio Adult

Parole Auth., 107 F.3d 1178, 1187 (6th Cir. 1997), rev’d on other grounds, 523 U.S. 272 (1998)

(claim challenging constitutionality of a state’s clemency or commutation proceeding is not a basis

for habeas relief, but as a civil rights action, because it does not challenge the validity of a prisoner’s

confinement); see also Otev v. Hopkins, 5 F.3d 1125 (8th Cir. 1993). Here, the Court agrees with

Plaintiff’s objection and his claim was properly brought under 42 U.S.C. § 1983. Thus, the Court

will sustain Plaintiff’s objection in part. 

Notwithstanding that conclusion, Plaintiff has not stated a claim under 42 U.S.C. § 1983 for

an ex post facto violation. The Court is persuaded by Judge Steeh’s well-reasoned analysis when

addressing this issue in the “identical” complaint in Lewis-El, which was as follows:

Article 1, § 10 of the United States Constitution prohibits states from passing ex post

facto laws. In Collins v. Youngblood, 497 U.S. 37, 41 (1990), the United States

Supreme Court indicated that the Ex Post Facto Clause of the U.S. Constitution

incorporated “ a term of art with an established meaning at the time of the framing

of the Constitution.” In connection with this interpretation, the Supreme Court held

that the Ex Post Facto Clause targets laws that “retroactively alter the definition of

crimes or increase the punishment for the criminal act.” Collins, 497 U.S. at 43

(citing to Calder v. Bull, 3 U.S. (Dall.) 386, 391-392 (1798)(Chase, J.); Beazell v.

Ohio, 269 U.S. 167, 169-170 (1925)). To fall within the ex post facto prohibition,

a law must be retrospective, i.e.; “it must apply to events occurring before its

enactment” and it “must disadvantage the offender affected by it.” Weaver v.

Graham, 450 U.S. 24, 29 (1981). However, the focus of the Ex Post Facto Clause

“is not on whether a legislative change produces some ambiguous sort of

‘disadvantage’”, nor on whether the amendment would affect a prisoner’s

“opportunity to take advantage of provisions for early release”, as is alleged here, but

on whether the change in the law “alters the definition of criminal conduct or

increases the penalty by which a crime is punishable.” Cal. Dep’t. of Corr. v.

Morales, 514 U.S. 499, 506, n. 3 (1995).

The presence of discretion given to parole boards in determining whether to parole

an inmate does not displace the protections afforded by the Ex Post Facto Clause.

See Garner v. Jones, 529 U.S. 244, 253 (2000). However, to the extent there inheres

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in ex post facto doctrine some idea of actual or constructive notice to the criminal

before commission of the offense of the penalty for the crime, “[w]here parole is

concerned discretion, by its very definition, is subject to changes in the manner in

which it is informed and then exercised. The idea of discretion is that it has the

capacity, and the obligation, to change and adapt based on experience. New insights

into the accuracy of predictions about the offense and the risk of recidivism

consequent upon the offender's release, along with a complex of other factors, will

inform parole decisions.” Id.

In the present case, the rescission of PD-DWA-45.12 does not violate the Ex Post

Facto Clause. Internal operating memoranda and policy directives of the Michigan

Parole Board and the Michigan Department of Corrections for determining parole

eligibility are not laws subject to the Ex Post Facto Clause, “because they are merely

flexible guideposts” that assist the parole board in exercising its discretion as to

whether to grant parole to an inmate. See Shabazz v. Gabry, 123 F. 3d 909, 915 (6th

Cir. 1997)(citing Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir. 1977)).

“[F]urthermore, the policies behind the Ex Post Facto Clause do not support the

position that internal policy directives and memoranda should be construed as laws.

The Ex Post Facto Clause exists to protect citizens from retroactive increases in

punishment. Changes in the administration and enforcement of statutes have little

impact on these public expectations.” Id. at 916. Neither a change in the body

vested with granting parole nor a change in the manifestation of this discretionary

power, which itself remains unchanged, violates the provision of the Ex Post Facto

Clause. See Bailey v. Gardebring, 940 F. 2d 1150, 1156 (8th Cir. 1991). The Ex Post

Facto Clause is also not violated merely because a parole board “takes a more

jaundiced view of applications for parole,” even though the inmate’s sentence may

end up being longer or harsher than he had hoped for when he committed the crime.

See Prater v. U.S. Parole Com’n, 802 F. 2d 948, 952 (7th Cir. 1986).

Moreover, even if a change in parole procedures might conceivably violate the Ex

Post Facto Clause, retroactive changes in policies regarding the commutation of

non-parolable life sentences does not violate the Ex Post Facto Clause. See

Snodgrass v. Robinson, 512 F. 3d 999, 1002 (8th Cir. 2008). This is because most

parole procedures “are distinct from the highly personal, policy oriented, and

legislatively unchecked authority” of Michigan’s governor to grant sentence

commutations. Id. “The unpredictability of a wholly discretionary grant of

commutation” in Michigan precludes plaintiff from demonstrating that any changes

in M.D.O.C. policy regarding commutations raise a “significant risk” that he will be

denied a commutation he otherwise would have received. As such, plaintiff cannot

demonstrate there is a significant risk his punishment will be longer than it would

have been when PD-DWA-45.12 was in place. Accordingly, he cannot make out an

ex post facto claim. Id. at 1002-03; See also Vertin v. Gabry, 70 F.3d 116 (Table),

1995 WL 613692 (6th Cir. October 18, 2005)(rejecting ex post facto challenge

involving the rescinding of Michigan’s commutation guideline PD-DWA-45.12).

Lewis-El v. Simpson, 08-15060, dkt. # 4 (E.D. Mich. December 16, 2008); see also Opinion and

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Order Denying Motion for Reconsideration, 08-15060, 2008 U.S. Dist. LEXIS 4061(E.D. Mich.

January 21, 2009). Ultimately, the Court is persuaded that Plaintiff’s allegations that parole board

has altered commutation procedures in violation of the Ex Post Facto Clause does not state a claim

upon which relief can be granted. Consequently, Plaintiff’s complaint should be dismissed with

prejudice and judgment entered in favor of Defendants. 

D

Accordingly, it is ORDERED that the report and recommendation [Dkt. # 24] is ADOPTED

in part and REJECTED in part. Plaintiff’s objection [Dkt. # 26] is SUSTAINED in part and

OVERRULED in part. 

It is further ORDERED that Defendants’ motion for summary judgment [Dkt. # 20] is

GRANTED and Plaintiff’s complaint is DISMISSED WITH PREJUDICE.

It is further ORDERED that Plaintiff’s motion for reassignment is DENIED.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: May 14, 2009

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on May 14, 2009.

s/Tracy A. Jacobs 

TRACY A. JACOBS

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