Opinion
Civil No. 01-CV-72575-DT
February 6, 2002
OPINION AND ORDER DENYING PETITION CLERKS OFFICE FOR WRIT OF HABEAS CORPUS
Roger Payne, III, ("petitioner"), presently confined at the Straits Correctional Facility in Kincheloe, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges the decision by the Michigan State Legislature to repeal the provisions of the Prison Overcrowding Emergency Powers Act. Petitioner also challenges an amendment to the Michigan parole laws which decreases the frequency of parole interviews from two to five years. For the reasons stated below, the application for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner was arrested on November 11, 1981 for armed robbery and possession of a firearm in the commission of a felony (felony-firearm). Petitioner was convicted of these offenses by a Wayne County Circuit Court jury. On January 7, 1983, petitioner was sentenced to twenty five to fifty years on the armed robbery conviction and received a consecutive two year prison sentence on the felony-firearm conviction.
At the time of petitioners offense and conviction, the Prison Overcrowding Emergency Powers Act (hereinafter the POEPA), M.C.L.A 800.71 et seq.; M.S.A. 28.1437(1) et seq., was in effect. The POEPA was enacted by the Michigan Legislature in response to overcrowding problems that existed in the Michigan prison system. See Oakland Co. Prosecuting Attorney v. Michigan Dep't of Corrections, 411 Mich. 183, 186-187; 305 N.W.2d 515 (1981). Under the POEPA, the Commission of Corrections was ordered to request that the governor of the State of Michigan declare a state of emergency when the established population level was reached inside of Michigan's prisons. M.C.L.A. 800.73; M.S.A. 28.1437(3). The commission was also instructed to certify "that all administrative actions consistent with the applicable state laws and the rules promulgated under those laws have been exhausted in an attempt to reduce the prison population" to an identified level. Id. After the Commission of Corrections requested the governor to declare a state of emergency, unless the governor found within fifteen days of the commission's request that the commission acted in error, the governor was required to declare a state of emergency which called for the minimum terms of those prisoners having established minimum terms to be reduced by ninety days. M.C.L.A. 800.74; M.S.A. 28.1437(4). If the prison population was not reduced to a designated level within a fixed period following such a declaration, further sentence reductions were authorized. M.C.L.A. 800.75; M.S.A. 28.1437(5).
Between the time that petitioner was sentenced and December 1984, petitioner accumulated 540 days' credit toward his minimum sentence under the provisions of the POEPA. Petitioner does not allege that these credits have been revoked or rescinded. However, the POEPA was repealed in 1987. See 1987 PA 101.
In 1997, petitioner filed a complaint for a writ of mandamus in the Wayne County Circuit Court, in which he alleged that the repeal of the POEPA violated the Ex Post Facto Clause of the United States Constitution. Petitioner also alleged that amendments made to the parole statute in 1992, which reduced the frequency of parole interviews from two years to five years, also violated the Ex Post Facto Clause. The circuit court denied the complaint for a writ of mandamus. Payne v. Michigan Department of Corrections, 97-71 1277-AW (Wayne County Circuit Court, October 27, 1997). On appeal, petitioner reasserted these claims, and further argued that both legislative actions violated the Due Process Clause of the United States Constitution. The Michigan Court of Appeals affirmed the denial of the complaint for a writ of mandamus. Payne v. Michigan Department of Corrections, 242 Mich. App. 638; 619 N.W.2d 719 (2000); Iv. den. ___ Mich. ___; 630 N.W.2d 333 (2001).
Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. The state court's determination of Petitioners claim under the Ex Post Facto and Due Process Clauses of the United States Constitution was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.
A. Petitioner's right to due process was violated when the Michigan Department of Corrections (M.D.O.C.) arbitrarily stopped calculating the minimum sentences of prisoners whose offense occurred between January 26, 1981 and January 1, 1988, under M.C.L.A. 800.71 et. seq; M.S.A. 28.1437(1); et. seq., the law in effect at the time of the offense, without due process of law.
II. The state court's determination that the increased intervals between Petitioners parole interviews, from two to five years, did not violate the Ex Post Facto and Due Process Clauses of the United States Constitution, was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.
II. STANDARD OF REVIEW
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 proceeding.28 U.S.C. § 2254 (d); Harpstar v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Wiliams v. Taylor, 529 U.S. 362, 412413 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.
III. DISCUSSION
A. Claim #1. The repeal of the POEPA by the Michigan Legislature did not violate the Ex Post Facto or Due Process Clauses of the United States Constitution.
Petitioner first claims that the repeal of the POEPA by the Michigan Legislature violates the Ex Post Facto Clause of the United States Constitution, because it lengthened his term of incarceration by depriving him of the opportunity to earn further sentencing credits as a result of future prison overcrowding situations, thereby inflicting a harsher punishment than existed before the repeal of the statute. As a related claim, petitioner alleges that the repeal of the POEPA violated his due process rights.
In rejecting these claims, the Michigan Court of Appeals held that the repeal of the Prison Overcrowding Emergency Powers Act (POEPA) did not violate the Ex Post Facto Clause or principles of due process. In so ruling, the Michigan Court of Appeals noted that the repeal of this statute did not revoke any credit which had been accumulated by petitioner under the POEPA, and further indicated that the award of emergency credits under the POEPA was not automatic, but was within the discretionary authority of the governor. Payne v. Michigan Department of Corrections, 242 Mich. App. at 641-643. The Michigan Court of Appeals found that petitioner's lost opportunity to have his prison term reduced by the provisions of the POEPA was "the type of ambiguous and speculative disadvantage that is not prohibited by the Ex Post Facto Clause." Id. at 643. For the same reasons, the Michigan Court of Appeals held that the repeal of the POEPA did not violate the principles of due process. Id.
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 prisoners "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." California Dep't. of Corrections v. Morales, 514 U.S. 499, 506, n. 3 (1995).
Petitioner has cited to several U.S. Supreme Court cases in support of his argument that the repeal of the POEPA violated the Ex Post Facto Clause, but as the Michigan Court of Appeals indicated in its opinion, these cases are readily distinguishable from petitioners case.
In Lynce v. Mathis, 519 U.S. 433, 439449 (1997), the United States Supreme Court held that a Florida statute which retroactively canceled provisional early release credits awarded to a state prisoner to alleviate overcrowding, which resulted in the rearrest and re-incarceration of the petitioner, violated the Ex Post Facto Clause of the U.S. Constitution. Petitioner's case is distinguishable from the petitioner's case in Lynce, because the repeal of the POEPA did not revoke the 540 days accumulated by petitioner under the POEPA. Payne v. Michigan Department of Corrections, 242 Mich. App. at 642.
Petitioner also cites to Weaver v. Graham, supra, in support of his argument that the repeal of the POEPA violated the Ex Post Facto Clause. In Weaver v. Graham, supra, the U.S. Supreme Court held that a Florida statute, which reduced the number of automatic good-time credits that a prisoner could receive, violated the Ex Post Facto Clause. Id. at 35-36. Unlike the situation in Weaver, the award of emergency credits for prison overcrowding in Michigan was not automatic. As the Michigan Court of Appeals indicated, "a significant feature of the POEPA was the discretionary authority given [to] the Governor." Payne v. Michigan Department of Corrections, 242 Mich. App. at 642.
A number of federal circuit court cases support the Michigan Court of Appeals' determination that the repeal of the POEPA did not violate the Ex Post Facto Clause. In Hock v. Singletary, 41 F.3d 1470, 1472 (11th Cir. 1995), the Eleventh Circuit held that Florida's control release statute, which implemented a control release program for certain types of offenders, did not violate the Ex Post Facto Clause, even though the statute took effect after the petitioner was incarcerated and rendered the petitioner ineligible for the control release program due to the nature of his offense. Because control release under Florida law was based on "an arbitrary and unpredictable determinant", namely, the prison population level, the Eleventh Circuit concluded that the petitioner had "no reasonable expectation at the time he is sentenced that the prison population will reach the specified triggering level and that his incarceration will be reduced." Id. at 1472-1473. In addition, whereas good time credits could be predicted and taken into account during plea bargaining and sentencing, thus affecting the quantum of punishment that attaches when the crime is committed, the Eleventh Circuit determined that there is no relationship between the eligibility for and receipt of control release and the length of the original sentence. Hock, 41 F.3d at 1473. The elimination of the opportunity for control release therefore did not affect the original penalty assigned to the crime at the time it was committed nor to the ultimate punishment that was imposed. Id.
With the AEDPA, congress limited the source of law for federal habeas relief to cases decided by the U.S. Supreme Court. However, to the extent that lower or inferior federal courts have decided factually similar cases, references to these decisions by a federal habeas court is appropriate or relevant in determining whether the state court's application of U.S. Supreme Court law was reasonable or unreasonable. Taylor v. Withrow, 154 F. Supp.2d 1037, 1041 (E.D. Mich. 2001)(Tarnow, J.).
In Abed v. Armstrong, 209 F.3d 63, 65-66 (2nd Cir. 2000), the Second Circuit Court of Appeals held that a state prison administrative directive which made inmates classified as safety threats ineligible to earn good time credits did not violate the Ex Post Facto Clause, where under the terms of Connecticut's good time credits statute, inmates were not automatically entitled to earn good time credits. Because the petitioner was not automatically entitled to earn good time credits under Connecticut law, the directive did not increase the inmate's punishment by restricting his eligibility. Id. The Second Circuit also concluded that the directive did not violate the Ex Post Facto Clause, because the directive was not retroactively applied, in that the petitioners previously earned credit was not forfeited, and the petitioner was not deemed ineligible to receive credits until after the directive went into effect. Abed v. Armstrong, 209 F.3d at 66.
In the present case, petitioner has failed to show that the repeal of the POEPA by the Michigan Legislature violated the Ex Post Facto Clause of the United States Constitution. The repeal of the POEPA was not applied retroactively in petitioner's case, because it did not cause petitioner to forfeit the five hundred and forty days of credit that he had already accumulated under the POEPA. Furthermore, petitioner has failed to show that he was automatically entitled to be awarded credits under the POEPA. Under the terms of the statute, the prison population would first have to reach a certain level before the provisions of the POEPA could even be triggered. Secondly, the Commission of Corrections was instructed to certify that it had exhausted all other measures in an attempt to reduce the prison population to an identified level before it could request the governor to declare a state of emergency. Finally, the statute, by its terms, gave the governor of the State of Michigan some discretion in determining whether to call a prison emergency, because it permitted the governor to find that the Commission of Corrections acted in error in making the request to declare a prison emergency. Because the award of emergency credits under Michigan law was based on several arbitrary and unpredictable determinants, namely, whether the prison population had exceeded acceptable levels, whether the Commission of Corrections had exhausted all other measures. In an attempt to reduce the population, and whether the governor decided that the commission had not acted in error in making this request, petitioner's claim is the type of ambiguous and speculative disadvantage that is not prohibited by the Ex Post Facto Clause. California Dep't. of Corrections v. Morales, 514 U.S. at 514. The decision of the Michigan Court of Appeals that repeal of the POEPA did not represent an ex post facto violation, even though it applied to prisoners like petitioner who had been serving sentences prior to the repeal, was neither contrary to, or an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court. See Ellis v. Norris, 232 F.3d 619, 622-624 (8th Cir. 2000).
Petitioner's related due process claim must also be rejected. As an initial matter, petitioner has no constitutionally protected liberty interest in shortening his sentence through emergency credits or credits awarded to relieve overcrowding. See Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir. 1994). Because petitioner never had (and does not have) any reasonable expectation that the prison population in Michigan would (or will) ever reach a level in the future that would trigger the provisions of the POEPA, no liberty interests had vested, for purposes of the Due Process Clause, under this statute. Hock v. Singletary, 41 F.3d at 1473. Moreover, the repeal of the POEPA would not violate any due process liberty interest that petitioner may have had. The Michigan Legislature had a "conceivable rational basis" for repealing the POEPA, because the legislature had a legitimate interest in seeing that prisoners served their sentences, and further had a legitimate interest in creating a mechanism to relieve prison overcrowding when it reached "crisis proportions", but also in ending that mechanism when it was no longer necessary. See Herring v. Singletary, 879 F. Supp. 1180, 1186 (N.D. Fla. 1995) (holding that retroactive legislation which canceled provisional administrative sentence credits for Florida inmates did not violate petitioner's due process liberty interests). Accordingly, the repeal of the POEPA did not violate the Due Process Clause of the U.S. Constitution.
B. Claim #2. The increase in the interval between parole interviews in Michigan does not violate the Ex Post Facto or Due Process Clauses of the United States Constitution.
In his second claim, petitioner alleges that amendments made to Michigan's parole statute in 1992, which reduce the frequency of parole interviews from two years to five years for certain offenders, violates the Ex Post Facto and Due Process Clauses of the United States Constitution.
1992 PA 181, M.C.L.A. 791.234(4)(a); M.S.A. 28.2304(4)(a); now M.C.L.A. 791.234(6)(a); M.S.A. 28.2304(6)(a).
The Michigan Court of Appeals rejected petitioner's argument that the change in the frequency of parole interviews from two to five years violated the federal constitution, finding that the decrease in the frequency of parole interviews did not create a "significant risk" of increased punishment. Payne v. Michigan Department of Corrections, 242 Mich. App. at 644. In so ruling, the Michigan Court of Appeals noted that the 1992 amendment to the parole statute did not change the standard for parole, and further gave prisoners "ample opportunity" to petition the Michigan Parole Board for interviews. The Michigan Court of Appeals further noted that the 1992 amendments allow the Parole Board to grant parole interviews on their own initiative, as well as to grant prisoners parole without an interview. Id.
In rejecting petitioners ex post facto claim, the Michigan Court of Appeals relied on the case of Shabazz v. Gabry, 123 F.3d 909, 914 (6th Cir. 1997), in which the Sixth Circuit held that the 1992 amendments to Michigan's parole statute did not violate the Ex Post Facto Clause of the United States Constitution. In reaching this conclusion, the Sixth Circuit held that the 1992 amendments to the Michigan parole statute did not violate the Ex Post Facto Clause, because the amendments did not change the standard for parole, but afforded inmates an "ample opportunity" to petition the Michigan Parole Board for interviews. The 1992 amendments also permitted the Parole Board to grant parole interviews of its own volition, and to grant parole to an inmate without an interview. Id.
In California Dept. of Corrections v. Morales, 514 U.S. at 508, the United States Supreme Court held that an amendment to California's parole procedures which decreased the frequency of parole hearings for certain offenders did not make any change in the quantum of punishment, so as to constitute an ex post facto violation. The California amendment in question allowed the parole board, after holding an initial parole hearing, to defer for up to three years subsequent parole suitability hearings for prisoners convicted of multiple murders if the board found that it was unreasonable to expect that parole would be granted at a hearing during the subsequent years. In evaluating the constitutionality of the amendment to California's parole statute, the U.S. Supreme Court indicated that it had to make a determination whether the amendment produces "a if sufficient risk of increasing the measure of punishment attached to the covered crimes." California Dept of Corrections v. Morales, 514 U.S. at 509. After making this inquiry, the Supreme Court ruled that there was no reason to conclude that the amendment would have any effect on any prisoners actual term of confinement, concluding that "a prisoner's ultimate date of release would be entirely unaffected by the change in the timing of suitability hearings." Id. at 512-513. The United States Supreme Court concluded that the California amendments at issue created "only the most speculative and attenuated risk of increasing the measure of punishment attached to the covered crimes." California Dept. of Corrections v. Morales, 514 U.S. at 514.
More recently, the United States Supreme Court held that the retroactive application of an amended Georgia Bureau of Pardons and Paroles rule, which changed the frequency of parole reconsideration hearings for Inmates serving life sentences from every three years to every eight years did not necessarily violate the Ex Post Facto Clause. Garner v. Jones, 529 U.S. 244, 251 (2000). In so ruling, the Supreme Court held that "a significant risk of prolonging" the prisoner's incarceration was not inherent in the framework of the amended rule and had not been demonstrated in the record. Id. The Supreme Court noted that Georgia's law changing the frequency of parole reviews was qualified in two respects:
1. The law gave the Parole Board the discretion as to how often to set an
Inmate's date for parole consideration, with eight years for the maximum;
2. The Parole Board's policies permitted expedited parole reviews when there was a change in circumstances or if the Board received new information that would warrant an earlier review for a prisoner.Garner v. Jones, 529 U.S. at 254.
The U.S. Supreme Court went on to rule that where "a rule does not by its own terms show a significant risk", a prisoner must 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." Garner v. Jones, 529 U.S. at 255.
This Court concludes that the 1992 amendments to Michigan's parole statute, which decreased the frequency of parole interviews, does not violate the Ex Post Facto Clause of the United States Constitution. As both the Sixth Circuit and the Michigan Court of Appeals have indicated, the 1992 amendments to the Michigan parole statute did not change the standard for parole. In fact, the amendments actually give inmates an "ample opportunity" to petition the Michigan Parole Board for a parole eligibility interview. The 1992 amendments permit the Parole Board to grant parole interviews of its own volition, and to grant parole to an inmate without an interview. Petitioner is therefore unable to show that the decrease in the frequency of parole interviews from two to five years will actually affect his actual release date from prison. Petitioner has failed to establish that the 1992 amendments to the Michigan parole statute create "a sufficient risk of increasing the measure of punishment attached to the covered crimes." California Dept. of Corrections v. Morales, 514 U.S. at 509. The 1992 amendments at issue create "only the most speculative and attenuated risk of increasing the measure of punishment" to the crimes that petitioner was convicted of. Id. at 514. Accordingly, petitioner's ex post facto claim is without merit.
Petitioner's related due process claim is equally meritless. There is no constitutional right of a convicted person to be conditionally released before the expiration of a valid sentence. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). Stated more succinctly, there is no federal constitutional right to be paroled. Gavin v. Wells, 914 F.2d 97, 98 (6th Cir. 1990); Lee v. Withrow, 76 F. Supp.2d 789, 792 (E.D. Mich. 1999) (Duggan, J.).
In Michigan, a prisoners release on parole is discretionary with the parole board. Lee v. Withrow, 76 F. Supp.2d at 792 (citing to In Re Parole of Johnson, 235 Mich. App. 21; 596 N.W.2d 202, 204 (1999)). The Michigan parole statute therefore does not create a right to be paroled. Id.; See also Hurst v. Department of Corrections Parole Bd., 119 Mich. App. 25, 29; 325 N.W.2d 615 (1982). Because the Michigan Parole Board has the discretion whether to grant parole, a defendant does not have a protected liberty interest in being paroled prior to the expiration of his or her sentence. Canales v. Gabry, 844 F. Supp. 1167, 1171 (E.D.Mich. 1994)(Gilmore, J.). Because petitioner does not have a liberty interest under Michigan law in being paroled, the decrease in the frequency of parole eligibility interviews does not violate the Due Process Clause. Id.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.