Opinion
Case Number 03-10036-BC.
July 19, 2004
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Joseph Raymond Ziegler, presently on parole to the Michigan Department of Corrections (MDOC), seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the time that the petition was filed, the petitioner was incarcerated at the Standish Correctional Facility in Standish, Michigan. In his application, filed pro se, the petitioner challenges the MDOC's decisions which found him guilty of various major misconducts while incarcerated. The petitioner also challenges the constitutionality of Mich. Comp. Laws § 600.2963(8), which precludes a prisoner from filing a new civil action or appeal until he has paid any outstanding fees or costs due and owing in previous civil actions. The petitioner has moved to amend his petition to reiterate claims that his parole did not disturb his "in custody" status, and the Court will allow that amendment. Nonetheless, the Court finds that the petitioner's claims lack merit and that for reasons other than his ensuing parole he is not in custody in violation of the Constitution or federal law. The Court, therefore, will deny the petition.
I.
In May 1995, the petitioner was sentenced to four to eight years in prison for felonious assault, Mich. Comp. Laws § 750.82, and being a third felony habitual offender, Mich. Comp. Laws § 769.11. The petitioner also received a consecutive two-year sentence for possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b. While incarcerated, the petitioner was found guilty of a number of major misconduct violations. In his application for habeas relief, the petitioner specifically challenges the following misconduct violations: a December 4, 2001 decision finding the petitioner guilty of insolence; a January 22, 2002 decision finding the petitioner guilty of disobeying a direct order; an August 1, 2002 decision finding him guilty of disobeying a direct order and creating a disturbance; an August 13, 2002 decision finding him guilty of disobeying a direct order and destruction or misuse of property over $10.00; and an August 28, 2002 decision finding the petitioner guilty of insolence. The petitioner received a thirty-day loss of privileges for each misconduct. The petitioner's request for rehearing on all of these tickets was denied by the MDOC.
The petitioner attempted to file a petition for judicial review in the Ingham County, Michigan Circuit Court, but his pleadings were rejected by the court pursuant to Mich. Comp. Laws § 600.2963(8) because the petitioner owed the court outstanding fees and costs from prior civil actions. The Michigan Court of Appeals and the Michigan Supreme Court both denied the petitioner's application for leave to appeal on the same basis. Ziegler v. Department of Corrections, No. 245374 (Mich.Ct.App. January 2, 2003); lv. denied. sub nom Ziegler v. Corrections Department, No. 123062 (Mich.Sup.Ct. January 22, 2003). The petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. The MDOC violated the petitioner's federal constitutional rights to liberty and due process by finding him guilty of the major misconducts.
II. Michigan's filing fee statute [Mich. Comp. Laws § 600-2963(8)] is unconstitutional since it violates the petitioner's federal constitutional rights to due process.
II.
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), govern this case because the petitioner filed this habeas petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). As amended, 28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:
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). 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, 433 (6th Cir. 1998). Mere error by the state court will not justify issuance of the writ; rather, the state court's application of federal law "must have been objectively unreasonable." Wiggins, 539 U.S. at ___, 123 S. Ct. at 2535 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000); internal quotes omitted). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."); 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.").
A.
In his first claim, the petitioner challenges the decision by the MDOC that found him guilty of various major misconduct violations. The petitioner alleges that there was no evidence to support these findings and further alleges that he was deprived the right to an impartial factfinder. The petitioner also contends that he was denied the right to present a defense to each of these misconduct charges and the right to obtain answers to certain questions that he submitted to the witnesses. The petitioner further claims that these actions violate the `Federal HEIT Settlement," although he does not specify how the State's action constituted a violation. Lastly, the petitioner contends that the warden and deputy warden wrongfully issued orders for the forfeiture of unearned good time or disciplinary credits.
The Court finds that the petitioner is not entitled to habeas relief on these claims for two reasons. First, his claims involving the alleged deprivation of his rights at the major misconduct hearings are conclusory and without any factual support. A petition for a writ of habeas corpus must set forth facts that give rise to a cause of action under federal law or it summarily may be dismissed. See Perez v. Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001). Conclusory allegations in a habeas petition without evidentiary support do not provide a basis for habeas relief. Payne v. Smith, 207 F. Supp. 2d 627, 650 (E.D. Mich. 2002); see also James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (stating that conclusory allegations not supported by a statement of specific facts do not warrant habeas relief). The petitioner has offered no facts in support of his claims involving the procedure utilized in his major misconduct violation hearings. Because his allegations are conclusory, he is not entitled to habeas relief on these claims.
The petitioner is also not entitled to habeas relief because he fails to satisfy the "in custody" requirement of Section 2254. Relief under Section 2254 of Title 28 of the United States Code is available only to state prisoners who are "in custody" under the conviction or sentence that is under attack at the time that the petition is filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). In this case, the petitioner does not allege that he was placed in more restrictive custody such as administrative segregation as a result of these major misconduct convictions, nor does he allege that he forfeited any disciplinary credits that he had earned as a result of the MDOC's decision. The only deprivation that the petitioner alleges is a thirty-day loss of privileges for each of the misconduct tickets. A habeas petitioner cannot challenge the loss of non-custodial privileges by way of a habeas petition because the loss of such privileges has only a "speculative or incidental effect" on the length of a prisoner's sentence and are not "close to the core of habeas corpus." Homen v. Hasty, 229 F. Supp. 2d 290, 295 (S.D.N.Y. 2002) (internal citations omitted); see also Hinebaugh v. Wiley, 137 F. Supp. 2d 69, 76 (N.D.N.Y. 2001). Furthermore, because the petitioner was sentenced as an habitual offender, he was not entitled under Michigan law, as he himself admits, to earn disciplinary credits against his sentence. See People v. Carson, 220 Mich. App. 662, 674, 560 N.W. 2d 657 (1997); People v. Martinez, 210 Mich. App. 199, 203, 532 N.W. 2d 863 (1995). Because the petitioner was neither placed in a more restrictive type of custody nor received a more extended custodial term as a result of these misconduct convictions, he does not satisfy the "in custody" requirement of § 2254 and cannot maintain a habeas action with respect to these misconduct convictions. See Johnson v. Freeburn, 29 F. Supp. 2d 764, 776, n. 3 (E.D. Mich. 1998); see also Pernokis v. McBride, 2003 WL 1979001, * 1 (7th Cir. April 25, 2003) (unpublished) (holding that a state prisoner was not "in custody" as a result of a disciplinary sanction where the sanction did not affect the duration of his incarceration). Because there is no allegation that the major misconduct convictions here affected the duration of the petitioner's incarceration, he is not entitled to habeas relief on his first claim.
B.
The petitioner also alleges that Subsection 8 of Mich. Comp. Laws § 600.2963 is unconstitutional because it prevents an indigent prisoner from filing a civil action in the Michigan courts if he has outstanding fees or costs due and owing from prior civil cases. The petitioner claims that he wrongfully was prevented from filing his petition for judicial review of the MDOC's decisions pursuant to Mich. Comp. Laws § 791.255 because of his inability to pay these outstanding fees and costs.
A federal habeas court cannot review any error in a state collateral proceeding where the error alleged has nothing to do with the petitioner's confinement. Zamora v. Pierson, 158 F. Supp. 2d 830, 836 (N.D. Ill. 2001); see also Roe v. Baker, 316 F. 3d 557, 571 (6th Cir. 2002) (stating that habeas relief may not be granted for alleged deficiencies in a state's post-conviction procedures because such claims relate to a state civil matter, and not to the custody of the habeas petitioner); Phillips v. Ferguson, 182 F. 3d 769, 772 (10th Cir. 1999) (holding that federal courts on habeas review cannot strike down as unconstitutional state post-conviction procedures). In this case, the petitioner's claim that Mich. Comp. Laws § 600.2963(8) has denied him access to the courts "represents an attack on proceedings" that are collateral to the petitioner's detention and not against the petitioner's detention itself. See Zamora, 158 F. Supp. 2d at 836. The petitioner therefore is not entitled to habeas review of this claim because his access-to-the-courts claim would not undermine his convictions on the major misconduct charges. Ibid; see also Childs v. Herbert, 146 F. Supp. 2d 317, 325-326 (S.D.N.Y. 2001) (stating that a habeas petitioner's equal protection claim based upon an appellate court's denial of his appellate attorney's request for remuneration was not cognizable in habeas proceeding; petitioner's equal protection claim did not allege any constitutional flaw in the prosecution, trial, or direct appeal of his case such that, if he were successful on his equal protection argument, his petition would result in his immediate release from custody). Because the petitioner's claim involving the filing fee provisions of Section 600.2963 would not lead to his release from custody if successful, the claim is not cognizable under Section 2254.
III.
The Court finds that the petitioner's claims involving the alleged deprivation of his rights at the major misconduct hearings are conclusory and without any factual support and the petitioner has failed to establish that he is "in custody" pursuant to the requirements of Section 2254. The petitioner's remaining claims lack merit.
Accordingly, it is ORDERED that the petitioner's motion to amend his petition [dkt # 21] is GRANTED.
It is further ORDERED that the petition for a writ of habeas corpus [dkt # 3], as amended, is DENIED.
It is further ORDERED that the petitioner's motion for default judgment and evidentiary hearing [dkt # 15] is DENIED.