1

 Although Petitioner actually filed a “Motion to Intervene and File Attached Petition for

Writ of Habeas Corpus,” the Court notes that the matter was opened as a new case and the

petition accepted for filing. The Court denies as moot the portion of the motion seeking

permission to file the attached habeas petition and addresses the remainder of the motion infra. 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ORVILLE LELAND DAVIS,

Petitioner, 

v.

CAROL HOWES,

Respondent. 

/

Case Number: 2:09-CV-12558

HON. MARIANNE O. BATTANI

OPINION AND ORDER OF SUMMARY DISMISSAL

Petitioner Orville Leland Davis is a state inmate at the Lakeland Correctional Facility in

Coldwater, Michigan. He has filed a pro se petition for a writ of habeas corpus.1

 In 1976,

Petitioner was convicted by a guilty plea in the Eaton County Circuit Court of second-degree

murder. He was sentenced to a parolable life sentence. Most recently, Petitioner was denied

release on parole on July 27, 2008. He has now filed a habeas corpus petition challenging the

denial of parole. This matter was originally assigned to the Honorable Patrick J. Duggan. It was

reassigned to the undersigned district judge as a companion case to Foster Bey v. Rubitschun,

No. 05-71318. 

I.

In the petition, Petitioner challenges the Michigan Parole Board’s July 27, 2008 decision

denying him parole. He sets forth the following claims for relief: 

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The prosecutors and policies used by the Michigan Parole Board to determine

parole eligibility for Petitioner under the facts and circumstances of this particular

case constitutes a violation of the Due Process Clause, and the right to be free of

cruel and unusual punishment. 

(A) The denial of parole under Michigan’s no-parole policy for murderers denied

Petitioner his due process right to be heard by an impartial decision-maker.

(B) The Parole Board, since 1992, has violated Petitioner’s due process rights by

adopting arbitrary and impermissible criteria bearing no relationship to the

purpose of a parole system.

(C) The Michigan Parole Board acted arbitrarily by basing its decision to deny

Petitioner a parole on impermissible grounds which violates his due process

rights.

(D) Petitioner’s constitutional right to be free of cruel and unusual punishment was

violated.

(E) Due process and equal protection requires habeas corpus discharge from custody

as the proper remedy. 

II.

A.

Promptly after the filing of a habeas corpus petition, a district court should review the

petition and 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 Section 2254 Cases. If the court determines that a petitioner is not entitled to relief,

the Court may summarily dismiss the petition. Rule 4; Allen v. Perini, 26 Ohio Misc. 149, 424

F.2d 134, 141 (6th Cir. 1970). The Court has reviewed the petition and determined that it is

subject to Rule 4 dismissal.

B.

Petitioner’s claims are reviewed against the standards established by the Antiterrorism

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and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA).

28 U.S.C. § 2254(d) imposes the following standard of review on federal courts

reviewing applications for a writ of habeas corpus:

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 proceedings. 

28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a

petitioner's claims unless the state court's decision was contrary to or involved an unreasonable

application of clearly established federal law. Franklin v. Francis, 144 F.3d 429 (6th Cir. 1998). 

Additionally, this court must presume the correctness of state court factual determinations. 28

U.S.C. § 2254(e)(1); see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) ("We give

complete deference to state court findings unless they are clearly erroneous"). 

The United States Supreme Court has explained the proper application of the "contrary

to" clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court's] clearly

established precedent if the state court applies a rule that contradicts the

governing law set forth in our cases. . . .

A state-court decision will also be contrary to this Court's clearly established

precedent if the state court confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives at a result

different from [the Court's] precedent. 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 

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With respect to the "unreasonable application" clause of § 2254(d)(1), the United States

Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the

"unreasonable application" clause when "a state-court decision unreasonably applies the law of

this Court to the facts of a prisoner's case." Id. at 409. The Court defined "unreasonable

application" as follows:

[A] federal habeas court making the "unreasonable application" inquiry should

ask whether the state court's application of clearly established federal law was

objectively unreasonable. . .

[A]n unreasonable application of federal law is different from an incorrect

application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application"

clause, then, a federal habeas court may not issue the writ simply because that

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. at 410-11. 

III.

Petitioner’s habeas claims fall into two categories, those related to post-1992 changes to

Michigan’s parole scheme and those related to the specific factors considered by the parole

board in denying Petitioner parole in 2008. The claims related to post-1992 parole changes are

duplicative of those presented in Foster Bey v. Rubitschun, No. 05-71318 (E.D. Mich. Oct. 23,

2007). The remaining claims fail to state a claim upon which habeas relief may be granted. 

A.

In Foster Bey v. Rubitschun, No. 05-71318 (E.D. Mich. Oct. 23, 2007), a group of

plaintiff prisoners filed a civil action under 42 U.S.C. § 1983, alleging that post-1992 changes to

Michigan’s parole scheme violate the class members’ rights under the Ex Post Facto and Due

Process Clauses. The matter was given class-action status. This Court held that the combined

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effect of several statutory amendments impacting consideration for and release on parole served

to significantly disadvantage the class and violated the Ex Post Facto Clause. Foster-Bey, No.

05-71318 (E.D. Mich. Oct. 23, 2007). The Court issued a declaratory judgment and injunctive

order requiring the Parole Board to give “prompt personal parole review” to the plaintiff class

under the norms used before 1992. Foster-Bey, No. 05-71318 (E.D. Mich. Feb. 7, 2008).

Petitioner, who is a member of the Foster-Bey class, states that he has been considered

for parole in response to this Court’s injunctive order. However, he argues that the parole

hearing he was afforded failed to comply with the Court’s remedial order (claim (E)). 

Specifically, he claims that the parole board’s “life means life” policy denied him his right to be

heard by an unbiased decision maker (claim (A)(1)), that the denial of parole pursuant to post1992 polices violates the Ex Post Facto Clause (claim (B)), and that the “life means life” policy

denied him his rights under the Due Process Clause (claim(C)). 

The Sixth Circuit Court of Appeals generally disfavors allowing a class-action plaintiff to

pursue an individual action which is duplicative of the class action. In Groseclose v. Dutton, 829

F.2d 581 (6th Cir. 1987), the Sixth Circuit held that a district court erred in granting relief to a

class of death-row inmates when members of the death-row class were also members of a larger,

previously-filed class action which raised the same claims raised by the death-row inmates. The

Court reasoned:

To allow two or more district judges to issue directions to prison officials

simultaneously would be to create . . . an “inefficient” situation, fraught with

potential for inconsistency, confusion, and unnecessary expense. 

Groseclose v. Dutton, 829 F.2d 581, 584 (6th Cir. 1987). The Court finds that claims (A)(1),

(B), (C) & (E) are duplicative of the class action and that challenges to the implementation of the

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Court’s remedial order are best addressed in the class-action suit. See also Dowtin v. Palmer,

No. 09-11387, 2009 WL 139401, * 2 (E.D. Mich. May 18, 2009) (Ludington, J.) (“Because

Petitioner is a member of the class action in Foster-Bey, an adequate remedy for Petitioner’s ex

post facto claims lies in the proceedings before Judge Battani”), Eaton v. Curtin, No. 08-cv13461, 2009 WL 799137 (E.D. Mich. March 29, 2009) (O’Meara, J.) (holding that a habeas

petition is an improper remedy for a Foster-Bey class member to challenge administration of

process for reviewing parolable lifers); Henderson v. Rubitschun, 2007 WL 1648932, *2 (E.D.

Mich. June 5, 2007) (Ludington, J.) (dismissing a civil rights complaint filed by a plaintiff who

is a member of the Foster-Bey class and whose complaint presented legal issues identical to

those raised in Foster-Bey and who sought relief identical to that sought in Foster-Bey). 

Therefore, the Court denies habeas relief as to these claims. 

B.

Petitioner also presents two claims, (A)(2) and (D), that are not duplicative of those

raised in the class action 

First, Petitioner argues that, in denying him parole, the parole board improperly

considered crimes he committed prior to the murder and after the murder. He argues that the

crimes were so remote from the crime for which he is currently incarcerated that they should not

have been considered at all. 

Petitioner has no federal constitutional right to be released on parole because there is no

constitutional right of a lawfully convicted person to be conditionally released before the

expiration of a valid sentence. See Greenholtz v. Inmates of Nebraska Penal & Corr. Complex,

442 U.S. 1, 7 (1979). “States may under certain circumstances create liberty interests which are

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protected by the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995). 

However, a petitioner has no constitutionally protected liberty interest in the procedural

requirements of state law where the State's discretion to deny parole is broad, as it is in

Michigan. Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir.1994) (en banc). 

In a habeas corpus proceeding, the scope of a federal court’s review of a Parole Board’s

decision denying parole is quite limited: 

Absent substantial evidence of an arbitrary and capricious abuse of discretion

amounting to a denial of a constitutional right, and absent evidence of a decision

based on an unconstitutional factor such as an applicant’s race, sex, religion, or

prior exercise of protected constitutional rights, the court should not interfere with

the parole board’s exercise of its discretion in denying an application for parole.

Juarez v. Renico, 149 F. Supp. 2d 319, 324 (E.D. Mich. 2001) (Lawson, J.). 

Petitioner argues that the parole board improvidently denied him parole based upon

crimes occurring both before and after the crime for which he is incarcerated. The parole board

based its denial of parole on many factors, including Petitioner’s criminal history, his use of a

dangerous weapon, his failure to acknowledge the seriousness of his crimes, and his failure to

express remorse. See Parole Board Notice of Decision, dated July 11, 2008. “The parole

release decision is based on a complex of factors covering, inter alia, psychiatry, criminology,

psychology, penology, and human relations. . . . Parole decision-making centers on making a

diagnostic and predictive determination with respect to whether the rehabilitation of the prisoner

and the welfare of society generally would be best served by granting the prisoner conditional

freedom rather than by his continued physical confinement.” Tamachaski v. Renico, 2001 WL

1478664, * 4 (E.D. Mich. Nov. 20, 2001) (Lawson, J.). It is not arbitrary or capricious for a

parole board to consider an inmate’s criminal history to determine whether to grant an inmate

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parole. See Jones v. Salisbury, 422 F.2d 1326, 1326 (6th Cir.1970). Petitioner has failed to show

that the parole board considered any improper factors or relied on any incorrect information in

denying him parole. The Court, therefore, finds that Petitioner is not entitled to habeas corpus

relief on this claim.

Second, in claim (D), Petitioner argues that the denial of parole violates the Eighth

Amendment. The Sixth Circuit has clearly held that the denial of parole:

does not implicate the Eight[h] Amendment's prohibition against cruel and

unusual punishment. The Eight[h] Amendment prohibits conduct that involves

the unnecessary and wanton infliction of pain. Ivey v. Wilson, 832 F.2d 950, 954

(6th Cir.1987). The denial of parole clearly does not fall under this umbrella.

Carnes v. Engler, 76 F. App'x 79, 81 (6th Cir. Sept.19, 2003). 

Habeas relief, therefore, is also denied on this claim. 

IV.

Also before the Court is Petitioner’s “Motion to Intervene and File Attached Petition for

Writ of Habeas Corpus.” As discussed supra, the petition has been filed and that portion of the

motion is denied as moot. It appears that Petitioner seeks permission to intervene in the FosterBey proceedings and to file his habeas corpus petition in that matter. Because Petitioner is a

member of the Foster-Bey class, there is no need for him to intervene. Petitioner’s habeas

corpus petition was accepted for filing by the Clerk of Court and assigned a new case number. 

The Court declines to direct that the petition be re-filed in the class-action. The Foster-Bey class

is represented by counsel. Where a party is represented by counsel, it is expected that all

pleadings will be filed by counsel. See Hall v. Hughes, No. CV-03-0040-EFS, 2005 WL

1152082 (E.D. Wash. May 16, 2005) (striking motion filed by litigant not through counsel);

Dayton v. Stolc, No. A03-0145CV, 2005 WL 906369 (D. Alaska Apr. 12, 2005). Thus, the

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Court denies Petitioner’s request to intervene. 

V.

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

IT IS FURTHER ORDERED that Petitioner’s “Motion to Intervene and File Attached

Petition for Writ of habeas Corpus” is DENIED.

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

Dated: July 22, 2009

CERTIFICATE OF SERVICE

I hereby certify that on the above date a copy of this Opinion and Order was served upon

the Petitioner, Orville Leland Davis, and Counsel for the Respondent.

s/Bernadette M. Thebolt

Case Manager

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