UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MONTEZ RAPHAEL CONLIFFE,

Petitioner,

v. Case Number: 09-CV-12302

HONORABLE STEPHEN J. MURPHY, III

MICHIGAN PAROLE BOARD,

NICK LUDWICK

Respondents.

________________________________/

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

INTRODUCTION

Montez Raphael Conliffe (“Petitioner”), a state prisoner presently confined at the St.

Louis Correctional Facility in St. Louis, Michigan, filed a pro se petition for writ of habeas

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

deny him parole. Petitioner pleaded guilty to unarmed robbery and possession with intent

to deliver, in the Genesee County Circuit Court, and was sentenced to three- to fifteenyears imprisonment in 2004. The Michigan Parole Board denied him parole on April 16,

2009, stating that it “lacks reasonable assurance that Petitioner will not become a menace

to society or to the public safety” and relying upon Petitioner’s crime and criminal history,

and his probation history and failure. See Petition, Attached Exhibit. In his pleadings,

Petitioner asserts that the Michigan Parole Board’s decision violated his due process rights,

and that he was entitled to parole absent “substantial and compelling” reasons.

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STANDARD OF REVIEW 

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 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. 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 must be dismissed.

DISCUSSION

In order to demonstrate that he is entitled to habeas corpus relief, Petitioner must

show that he “is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254. Petitioner alleges a violation of the Due Process Clause of the

Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment

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 (1974).

The Supreme Court has definitively held that there is no right under the United

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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 those standards, the Michigan Court of Appeals and the courts within the

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Sixth Circuit have concluded that a liberty interest in parole does not arise under Michigan

law. See Hurst v. Dep’t. of Corr. Parole Bd., 119 Mich. App. 25, 28-29 (1982); Juarez v.

Renico, 149 F. Supp. 2d 319, 322 (E.D. Mich. 2001). 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. 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 claim is not cognizable on federal habeas review. Petitioner

has also not shown that he is being held beyond the expiration of his sentence. Habeas

relief is therefore not warranted in this case.

CONCLUSION

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

habeas relief on the claims in his habeas petition and that the petition must 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 federal district court rejects a habeas claim on the merits, 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

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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.

When a federal district court denies a habeas claim on procedural grounds without

addressing the claim’s merits, a certificate of appealability should issue if it is shown that

jurists of reason would find it debatable whether the petitioner states a valid claim of the

denial of a constitutional right, and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling. See Slack, 529 U.S. at 484-85.

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

a substantial showing of the denial of a constitutional right and that a certificate of

appealability is not warranted in this case. 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.

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s/Stephen J. Murphy, III 

Stephen J. Murphy, III

United States District Judge

Dated: October 7, 2009

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on October 7, 2009, by electronic and/or ordinary mail.

s/Alissa Greer 

Case Manager

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