Crump v. Lafler

• Decision Date: 21 October 2011
• Docket Number: No. 09–1073.,09–1073.
• Citation: 657 F.3d 393
• Parties: Lucius CRUMP, Petitioner–Appellant,v.Blaine C. LAFLER, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

657 F.3d 393

Lucius CRUMP, Petitioner–Appellant,

v.Blaine C. LAFLER, Respondent–Appellee.

No. 09–1073.

United States Court of Appeals, Sixth Circuit.

Argued: April 28, 2011.Decided and Filed: Sept. 20, 2011.Rehearing and Rehearing En Banc Denied Oct. 21, 2011.*

ARGUED: Jacob R. Loshin, Winston & Strawn LLP, Washington, D.C., for Appellant. Andrea M. Christensen, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Geoffrey P. Eaton, Winston & Strawn LLP, Washington, D.C., for Appellant. Andrea M. Christensen, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.Before: COLE and GIBBONS, Circuit Judges; CLELAND, District Judge. ^**CLELAND, D.J., delivered the opinion of the court, in which GIBBONS, J., joined. COLE, J. (pp. 405–06), delivered a separate dissenting opinion.

OPINION

CLELAND, District Judge.

Petitioner–Appellant Lucius Crump asks us to find that the Michigan law governing parole has created a liberty interest cognizable under the Fourteenth Amendment and enforceable in a federal court through a 28 U.S.C. § 2254 petition for a writ of habeas corpus. Although Michigan may categorize a parole-eligible prisoner as having a “high probability” of release, we find that an actual release determination remains uncertain and subject to a broad grant of discretion to the Parole Board to decide otherwise. A prisoner in the high-probability class, therefore, has no enforceable claim of entitlement to release. The district court's dismissal of Appellant's petition will be AFFIRMED.

I. BACKGROUND

In 2001, pursuant to his plea of guilty, Petitioner was convicted of third-degree criminal sexual conduct (“CSC”) and sentenced to a term of imprisonment from 3 to 22 1/2 years. Following his arrest on the CSC charge, and while on bond for that charge, he was arrested for possession with intent to deliver cocaine. He was convicted of that offense as well, and sentenced to a term of 7 to 20 years imprisonment consecutive to the CSC sentence.

Petitioner became eligible for parole in 2008. The Michigan Parole Board assessed his parole using the Department of Corrections Parole Guidelines. Using the associated guidelines scoresheet, the Board assigned Petitioner a score of +3, which gives him a status of “high probability of parole.” Nonetheless, on July 15, 2008, after a Parole Board interview, the Board denied Petitioner's application for parole for a period of 18 months. Notice of the Board's decision was mailed to Petitioner on July 21, 2008. In the section of the notice entitled “Substantial and Compelling Reasons for Guideline Departure,” the Board wrote:

P is a repeat sex offender. P needs SOT [sex offender therapy] to reduce his risk of recidivism. P took SOT [in a previous incarceration], but that did not help. At PBI [Parole Board Interview], P had no insight, empathy, or remorse. He has not reduced his risk.

(Pet., Dist. Ct. Docket 1, Ex. A at 1.) Additional reasons for the Parole Board's decision are found elsewhere in the notice, in the section entitled “Reasons for the Parole Board Action.” ( Id. at 1–2.) The notice also provided a list of “Recommendations for Corrective Action Which May Facilitate Release.” ( Id. at 2.)

Petitioner contends that the Board's decision was based “almost entirely on a seven-year-old psychological evaluation that was conducted just months after Mr. Crump's incarceration and that therefore did not, and could not, take into account Mr. Crump's current ‘risk of recidivism.’ ” (Pet'r's Opening Br. at 7–8.) Petitioner also argues that the assertion that he needed sex offender therapy to reduce his risk of recidivism is not even consistent with the 2001 psychological evaluation because the evaluation stated only that therapy “may” be “of some benefit.” ( Id. at 8.) Petitioner further contends that it was inconsistent for the Board to stress the importance of sex offender therapy without also recommending that therapy in the list of “Recommendations for Corrective Action.” ¹ ( Id.)

On August 28, 2008, Petitioner filed a pro se “Motion to Show Cause” in the United States District Court for the Western District of Michigan, which the court interpreted as a petition for habeas corpus under 28 U.S.C. § 2254. The petition claimed that the Board's decision to deny him parole was not supported by the record evidence and thus constituted a deprivation of liberty without due process of law.

The petition was referred to Magistrate Judge Hugh Brenneman, who issued a Report and Recommendation on September 8, 2008, recommending a summary dismissal of the petition for failing to raise a meritorious federal claim. ² Specifically, the magistrate judge held that in the absence of a state-created entitlement, Petitioner lacked a cognizable liberty interest in parole, and he therefore failed to state a claim.

Petitioner filed objections, which were considered by United States District Judge Robert J. Jonker on December 22, 2008. Over Petitioner's objections, the district court adopted the recommendation, dismissed the habeas petition, and denied a certificate of appealability. Petitioner timely appealed, and this court granted a certificate of appealability.

II. ANALYSIS

A. Standard of Review

In considering a district court's denial of a petition for a writ of habeas corpus under 28 U.S.C. § 2254, we review all legal conclusions de novo. Tolliver v. Sheets, 594 F.3d 900, 915 (6th Cir.2010) (citing Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.2004)). Generally, the district court cannot grant a petition under § 2254 “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim 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.” 28 U.S.C. § 2254(d)(1). Here, however, Petitioner's claim has not been adjudicated in state court, and we thus apply de novo review.

B. Discussion

The Fourteenth Amendment to the United States Constitution provides that a state may not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The right to procedural due process “requires that when a State seeks to terminate [a protected] interest ... it must afford ‘notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.” Bd. of Regents v. Roth, 408 U.S. 564, 570 n. 7, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (quoting Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (alteration in original)). “Not every injury or substantial deprivation inflicted upon a person by the state ‘is sufficient to invoke the procedural protections of the Due Process Clause.’ ” Mayes v. Trammell, 751 F.2d 175, 177 (6th Cir.1984), superseded by rule (quoting Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)). In order to have a protected interest, Petitioner “clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577, 92 S.Ct. 2701. This, precisely, is Petitioner's claim.

“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). “A state may ... establish a parole system, but it has no duty to do so.” Id. “That the state holds out the possibility of parole provides no more than a mere hope that the benefit will be obtained.” Id. at 11, 99 S.Ct. 2100 (citing Roth, 408 U.S. at 577, 92 S.Ct. 2701). Such a “general interest ... is no more substantial than the inmate's hope that he will not be transferred to another prison, a hope which is not protected by due process.” Id. (citing Meachum, 427 U.S. at 225, 96 S.Ct. 2532). Rather, to obtain a constitutionally protected liberty interest in parole, Petitioner must have a “legitimate claim of entitlement to” parole, a claim that can be created only by the operation of state law. Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir.1991) (quoting Greenholtz, 442 U.S. at 7, 99 S.Ct. 2100). “The federal constitution protects such claims, but does not create them.” Id.

In Greenholtz, the Supreme Court reviewed Nebraska's parole statutory scheme and found that “the expectancy of release provided in this statute is entitled to some measure of constitutional protection.” 442 U.S. at 12, 99 S.Ct. 2100. In so holding, the Court “emphasize[d] that this statute has unique structure and language and thus whether any other state statute provides a protectible entitlement must be decided on a case-by-case basis.” Id. The “unique structure” to which the court referred is formulated as “shall release ... unless ... [specific conditions are met].” Specifically, the Nebraska statute stated:

Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:

(a) There is a substantial risk that he will not conform to the conditions of parole;

(b) His release would depreciate the seriousness of his crime or promote disrespect for law; (c) His release would have a substantially adverse effect on institutional discipline; or

(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.

Id. at 11, 99 S.Ct. 2100 (quoting Neb.Rev.Stat. § 83–1,114(1) (1976) (emphasis added)). The statute also provided “a list of 14 explicit factors and one catchall factor that the Board [wa]s obligated...