Juarez v. Renico, 00-10258-BC.

Decision Date12 June 2001
Docket NumberNo. 00-10258-BC.,00-10258-BC.
PartiesReuben JUAREZ, # 248062, Petitioner, v. Paul RENICO, Respondent.
CourtU.S. District Court — Eastern District of Michigan

Ruben Juarez, St. Louis, MI, Pro se.

Vincent J. Leone, Michigan Dept. of Atty. General, Habeas Corpus Division, lansing, MI, for Respondent.

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

LAWSON, District Judge.

Petitioner, Reuben Juarez, presently confined at the Mid Michigan Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his application, filed pro se, petitioner attacks the Michigan Parole Board's denial of his release on parole, resulting in his continued confinement. Petitioner's application does not entitle him to habeas relief and the petition shall be denied with prejudice.

I.

Petitioner is a prisoner of the State of Michigan. He was initially accused of first-degree sexual conduct, Mich. Comp. Laws § 750.520b(1)(a). It was alleged that petitioner sexually molested and digitally penetrated the five-year-old grand-daughter of his girlfriend. Petitioner pleaded guilty to second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520c(1)(a). On February 21, 1996, petitioner was sentenced to a term of four to fifteen years imprisonment for this crime. Petitioner was denied parole release by the Michigan Parole Board on December 21, 1999. The parole board stated that it lacked reasonable assurance that petitioner would not become a menace to society or to the public safety if he was released on parole. The parole board further stated that reasons supporting its action included the facts that petitioner's crime was an assaultive crime and a sexual assault, that the sexually motivated crime involved a minor family member or acquaintance, and petitioner has a criminal history of violent misdemeanors and a long-standing history of substance abuse. Parole Board Notice of Action at 1.1

II.

Petitioner contends that the decision of the Michigan Parole Board denying him parole release from his sentence deprived him of his right to due process flow and equal protection of the law guaranteed by the Fourteenth Amendment. Petitioner asserts that the appropriate remedy for these claimed violations of his rights is either release on parole within thirty days or a new parole consideration hearing before a neutral and detached parole board.

Petitioner maintains that his right to due process of law was violated because the decision to deny him parole release was made by parole board members who are appointed by the director of the Michigan Department of Corrections (MDOC) and are not within the state civil service provisions. See Mich. Comp. Laws § 791.231a(1). Pursuant to Mich. Comp. Laws § 791.231a(2), parole board members are appointed for limited terms of years; a member may be reappointed. Further, the director of the MDOC "may remove a member of the parole board for incompetency, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office." Mich. Comp. Laws § 750.231a(2). Petitioner argues that these provisions subject parole board members to undue pressure to deny parole out of fear of not being reappointed, or of being removed, such that members have a direct, pecuniary interest in issuing parole denials. Petitioner contends that this deprives him of the right to have a "neutral and detached" parole board decide whether to grant or deny parole, thereby denying him due process of law, citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), for support.

Petitioner also contends that as a convicted sex offender he was subjected to an even greater likelihood of parole denial than prisoners convicted of other types of crimes serving similar sentences. Petitioner argues that this special scrutiny deprived him of the equal protection of the law. Respondent replies that 1) because petitioner has no protected liberty interest in parole release, he has no constitutional right to due process in the parole decision-making process and 2) even if it is assumed that sex offenders who have victimized minors are categorically less likely to be granted parole than inmates similarly situated except for their crime of conviction, this would not offend the equal protection clause, because the state has a legitimate interest in more closely scrutinizing such prisoners before granting them parole release.

A.
1.

Petitioner has no 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, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Bd. of Pardons v. Allen, 482 U.S. 369, 377 n. 8, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). Thus, there is no federal constitutional right to parole. Gavin v. Wells, 914 F.2d 97, 98 (6th Cir.1990); Sweeton v. Brown, 27 F.3d 1162 (6th Cir.1994).

In Michigan, the decision to release a prisoner on parole is a discretionary decision of the parole board. In re Parole of Johnson, 235 Mich.App. 21, 596 N.W.2d 202 (1999)(per curiam)(citing Mich. Comp. Laws § 791.234(6)(d) and 791.234(7)). See also Mich. Comp. Laws § 791.234(9). The Michigan parole statute does not create a right to be paroled. Hurst v. Dep't of Corr. Parole Bd., 119 Mich.App. 25, 28-29, 325 N.W.2d 615, 616 (1982). Because the Michigan Parole Board has discretion whether to grant parole, a defendant does not have a protected liberty interest in being released on parole. Canales v. Gabry, 844 F.Supp. 1167, 1171 (E.D.Mich. 1994). "[T]he expectancy of release upon parole is not a constitutionally protected interest where the state holds out `no more than a mere hope that the benefit will be obtained.'" Wright v. Trammell, 810 F.2d 589, 590 (6th Cir.1987)(quoting Greenholtz, 442 U.S. at 11, 99 S.Ct. 2100). Consequently, petitioner does "not have a sufficient liberty interest in his future parole release to be entitled to due process in his parole release proceedings." Sharp v. Leonard, 611 F.2d 136, 137 (6th Cir.1979). See also Brown v. Lundgren, 528 F.2d 1050 (5th Cir.1976)(holding that mere expectation of parole release while still in otherwise lawful custody is not so vested as to result in a grievous loss of a protected liberty interest triggering due process protections, if denied by discretionary parole release decision of United States Board of Parole); but see Childs v. United States Bd. of Parole, 511 F.2d 1270 (D.C.Cir.1974)(holding that denial of parole release is equivalent to denial of same conditional liberty at issue in parole revocation proceedings, mandating due process protections in parole consideration proceedings).

Petitioner also contends that parole board members have a pecuniary interest in denying parole requests because members are not protected by civil service rules and risk removal and denial of reappointment by the director of the MDOC if they grant parole requests too freely. Petitioner argues that this undue influence likewise violates due process. However, as noted above, petitioner is not entitled to due process of law in the parole consideration decision. Therefore, petitioner's claim does not entitle him to habeas relief.

2.

Alternatively, if it was determined that petitioner was entitled to due process of law in the parole release decision-making process, his habeas corpus petition must be denied nonetheless because petitioner has not shown that the lack of civil service protection for parole board members deprived petitioner of a "neutral and detached" decision maker.

In the parole revocation context, the Supreme Court has stated that due process requires that a neutral and detached decision maker determine whether there was probable cause to believe that the parolee had violated the conditions of his parole. The Supreme Court stated that the requirements of neutrality and detachment are satisfied where "an evaluation of whether reasonable cause exists to believe that conditions of parole have been violated is made by someone such as a parole officer other than the one who has made the report of parole violations or has recommended revocation." Morrissey, 408 U.S. at 486, 92 S.Ct. 2593. Thus, a decision maker is sufficiently "neutral and detached" in the parole revocation context if he or she is not the same person who has accused the parolee of violating his or her parole. Neutrality and detachment do not require civil service protection, employment by a different agency, a law degree, or election or appointment as a judicial officer. Id.

The parole consideration process is not perfectly analogous. However, petitioner does not allege that any of the parole board members who denied him parole release were responsible for his arrest or prosecution, or stated prior to his parole consideration hearing that they considered him unfit for parole release. Therefore, this Court is not persuaded that petitioner has shown he was deprived of a hearing before a "neutral and detached" decision maker.

"[T]he Supreme Court has held that the Fourteenth Amendment right to due process is certainly compromised where the decision maker has a `direct, personal, substantial pecuniary interest' in the proceedings." DePiero v. City of Macedonia, 180 F.3d 770, 777 (6th Cir.1999)(quoting Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927)). In Tumey, the direct, personal, substantial pecuniary interest in the outcome of the proceedings was cash payments the mayor (who also functioned as a judge) would receive if the defendant were convicted, but would not receive if the defendant were acquitted. Petitioner cannot show a direct pecuniary interest such as this.

Petitioner speculates that parole board members must deny parole release to at least some applicants who actually should be granted parole...

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