Brown v. Jansen
| Decision Date | 01 June 2009 |
| Docket Number | Case No. 1:08-cv-591. |
| Citation | 619 F.Supp.2d 372 |
| Parties | Ronald A. BROWN, Petitioner, v. Rick JANSEN, Respondent. |
| Court | U.S. District Court — Western District of Michigan |
Ronald A. Brown, Standish, MI, pro se.
ORDER AND JUDGMENT APPROVING REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge's Report and Recommendation (docket # 10), and Petitioner's objection to it (docket # 13). Under the Federal Rules of Civil Procedure, where, as here, a party has objected to portions of a Report and Recommendation, "[t]he district judge . . . has a duty to reject the magistrate judge's recommendation unless, on de novo reconsideration, he or she finds it justified." 12 WRIGHT, MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed.1997). Specifically, the Rules provide that:
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.
FED.R.CIV.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C). De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir.1981).
The Report and Recommendation recommends that Petitioner's habeas corpus petition be summarily dismissed for failure to raise a meritorious federal claim. Petitioner makes multiple objections to the Report and Recommendation, but those objections merely restate his general argument or pertain to inconsequential details. Ultimately, none of the objections undermines the conclusion of the Magistrate Judge. After a de novo review of the record, the Court finds that Petitioner's habeas corpus petition is without merit, and the petition is summarily dismissed.
Petitioner currently is incarcerated in the Michigan Department of Corrections facility at Camp Branch. His original sentence of conviction arises out of his role in a 1992 armed robbery. Petitioner has been paroled on three separate occasions, but, on each occasion, he has had parole revoked for violating the terms or conditions of his release. His habeas petition challenges the Michigan Parole Board's decision to revoke his parole for the third time.
Petitioner alleges that his substantive Due Process rights were violated in his December 2004 parole revocation hearing because (1) various police officers or probation officials lied under oath at the hearing; and (2) the hearing examiner doctored the audio tape and transcript of the hearing.
The parole revocation hearing examiner heard testimony from multiple witnesses. Petitioner, who was represented by counsel at the hearing, cross-examined those witnesses, called his own witnesses, and testified on his own behalf. Ultimately, the hearing examiner chose to credit the testimony of persons who Petitioner alleges were lying. The hearing examiner's credibility determinations are findings of fact that this Court must presume to be correct. See 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.2003). Petitioner presents no evidence that the hearing examiner's decision to credit the testimony of these witnesses was "objectively unreasonable in light of the evidence presented." See Thompkins v. Berghuis, 547 F.3d 572, 586 (6th Cir.2008); see also 28 U.S.C. § 2254(d)(2). Thus, Petitioner fails to satisfy his burden of showing by "clear and convincing evidence" that the factual findings of the parole hearing examiner should be set aside. See Lancaster, 324 F.3d at 429. Additionally, there is no evidence in the record to support Petitioner's allegations that the parole revocation hearing tapes and transcripts have been doctored. Petitioner's Due Process claim must be dismissed.
Petitioner alleges the Michigan Parole Board violated the Ex Post Facto Clause of the United States Constitution by sentencing him to a sixty-month continuance for his parole violation. The gravamen of Petitioner's argument is that he would have received a lesser continued sentence but for the so-called "Zero Gun Tolerance Policy" announced by Governor Jennifer Granholm in July 2004, thirteen months after Petitioner was paroled for the third time, and three months before he was caught with a weapon, triggering his most recent parole revocation.1
The Ex Post Facto Clause prohibits enactments that "retroactively alter the definition of crimes or increase the punishment for criminal acts." Cal. Dept of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). In this case, the Magistrate Judge recommended dismissal of Petitioner's ex post facto claim in part because he found that the Zero Gun Tolerance Policy did not apply retroactively insofar as Governor Granholm announced the Policy before Petitioner was caught with a weapon. (Report and Recommendation, docket # 10, at 388-89.) This aspect of the Report and Recommendation is incorrect. Sanctions for violation of parole are part of the penalty of the initial offense of conviction. See Johnson v. United States, 529 U.S. 694, 700, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (). Petitioner's initial offense of conviction predates the policy, thus application of that policy to him is technically "retroactive" within the meaning of the Ex Post Facto Clause, even though he actually had advance notice of it. See id. But just because a policy is technically "retroactive," does not mean it violates Petitioner's rights under the Ex Post Facto Clause. Id. at 699, 120 S.Ct. 1795. Rather, Petitioner bears the burden of showing that the policy, as applied to him, created a "significant risk" that his actual length of incarceration would be greater than it was at the time he committed armed robbery in 1992. Garner v. Jones, 529 U.S. 244, 255, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000); see also Johnson, 529 U.S. at 699, 120 S.Ct. 1795. Because Petitioner cannot make this showing, his petition must be dismissed.
At first blush, it seems odd to apply ex post facto analysis to a parole decision that is by design and practice a quintessentially discretionary call. As long as the parole board's decision does not result in the offender serving more time than the maximum sentence permissible for his offense of conviction at the time of conviction, how is the quantum of potential punishment changed in any way that violates the reasonable expectations of the offender? Garner, 529 U.S. at 258, 120 S.Ct. 1362 (Scalia, J. concurring) (). Indeed, in the analogous analytical context of a due process challenge to denial of parole, courts routinely articulate the rationale for rejecting the claim in precisely these terms. See, e.g., Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir.1994) (en banc) ( ) (internal footnotes and quotations omitted). There is a seeming inconsistency in holding that the discretionary nature of Michigan's parole system prevents a prisoner from obtaining a liberty interest in early release but does not prevent the same prisoner from bringing an ex post facto challenge to the standards or procedures by which the parole board decides whether such early release is appropriate.2 Cf. Garner, 529 U.S. at 258-59, 120 S.Ct. 1362 (Scalia, J. concurring).
But notwithstanding these inconsistent strands of analysis, it is well established that retroactive changes to laws, rules, or policies governing parole may in certain circumstances violate the Ex Post Facto Clause, even if the actual custodial time served is within the statutorily allowed maximum sentence. Garner, 529 U.S. at 244, 120 S.Ct. 1362. Analysis of ex post facto concerns is particularly difficult in the parole context because parole is built on the idea of discretion. Id.; see also M.C.L. §§ 791.234, 791.240a (); Sweeton, 27 F.3d at 1164 (). The very idea of discretion is that "it has the capacity, and the obligation, to change and adapt based on experience." Garner, 529 U.S. at 253, 120 S.Ct. 1362. For the purposes of ex post facto analysis then, the Court must take into account the broad discretion afforded the Michigan Parole Board in applying the "significant risk" standard. Id. The operational question is whether the complained of change in the parole process was so fundamental and dramatic that there is now a significant risk not just of more time in custody, but so much more time that it was not within the offender's range of reasonable contemplation at the time of the offense, even considering the ebbs and flows of discretion and experience embedded in the parole system.
Petitioner cannot possibly make that showing in this case. Petitioner concedes that, under the terms of his parole, he was prohibited from possessing a weapon or associating with anyone who possesses a weapon. (See Petitioner's Objections, docket # 13, at 12.) Upon finding that a parolee has violated the terms of his or her parole, the parole board may send the parolee back to prison for any term up to the maximum term remaining...
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... ... Instead, it is proper to revoke parole ... when the evidence establishes reasonable grounds to do so ... Brown v. Jansen , 619 F.Supp.2d 372, 386 (W.D. Mich ... 2009) (citing Morrissey, 408 U.S. at 490) ... Under ... ...