Phillips v. Warden, State Prison of Southern Michigan

• Decision Date: 03 February 1987
• Docket Number: Docket No. 91468
• Citation: 153 Mich.App. 557,396 N.W.2d 482
• Court: Court of Appeal of Michigan — District of US
• Parties: Gerald PHILLIPS, Plaintiff-Appellee, v. WARDEN, STATE PRISON OF SOUTHERN MICHIGAN, Defendant-Appellant. 153 Mich.App. 557, 396 N.W.2d 482

Page 482

396 N.W.2d 482

Gerald PHILLIPS, Plaintiff-Appellee, v. WARDEN, STATE PRISON OF SOUTHERN MICHIGAN Defendant-Appellant.

Docket No. 91468.

153 Mich.App. 557, 396 N.W.2d 482

Court of Appeals of Michigan.

Submitted June 19, 1986.

Decided July 22, 1986.

Released for Publication, Dec. 10, 1986.

Leave to Appeal Denied Feb. 3, 1987.

[153 MICHAPP 559] James Sterling Lawrence, Detroit, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Edgar L. Church, Jr., Asst. Atty. Gen., for defendant-appellant.

Before SHEPHERD, P.J., and J.H. GILLIS and MacKENZIE, JJ.

PER CURIAM.

Defendant appeals as of right from a "writ of habeas corpus" ordering plaintiff's unconditional discharge from the State Prison of Southern Michigan. We vacate and remand.

Following his conviction for kidnapping, plaintiff was sentenced on September 17, 1977, to from twenty to forty years' imprisonment, with credit for time served, and placed in custody at the State Prison of Southern Michigan. He became eligible for parole on January 2, 1985.

Pursuant to M.C.L. Sec. 791.235(1); M.S.A. Sec. 28.2305(1), the release of a prisoner on parole shall be granted solely upon the initiative of the parole board. Although a prisoner sentenced to an indeterminate sentence becomes subject to the jurisdiction of the parole board when he has served the minimum sentence imposed, less good time allowances, M.C.L. Sec. 791.234(1); M.S.A. Sec. 28.2304(1), the time of a prisoner's release on parole is discretionary with the parole board. M.C.L. Sec. 791.234(5); M.S.A. Sec. 28.2304(5).

M.C.L. Sec. 791.235(1); M.S.A. Sec. 28.2305(1) provides that a prisoner shall not be denied parole without an interview before at least one member of the parole board. The board may grant parole without an interview. Id. If an interview is to be conducted, the prisoner must be given a notice of intent stating issues and concerns which may be the basis for denial of parole at least two months before his eligibility date. M.C.L. Sec. 791.235, subds. (1) and (3); [153 MICHAPP 560] M.S.A. Sec. 28.2305, subds. (1) and (3). At least ninety days before eligibility, a parole eligibility report must be prepared by institutional staff. M.C.L. Sec. 791.235(6); M.S.A. Sec. 28.2305(6). The interview must be conducted at least one month before the expiration of the prisoner's sentence less good time allowances. If parole is denied, the prisoner must be provided with a written explanation of the reason for denial and recommendations for corrective actions to facilitate release. M.C.L. Sec. 791.235(10); M.S.A. Sec. 28.2305(10). Additionally, 1979 AC, R 791.7710(2)(c) provides that the board shall furnish the resident with written notice "setting a new hearing date, to be no more than 12 months from the minimum eligibility date or previous pass-over date." Thus, it appears that, while an interview is optional with the board upon a prisoner's initial eligibility for parole, once the board "passes-over" an inmate, by administrative rule rehearings must be held every twelve months. By statute, M.C.L. Sec. 791.235(6); M.S.A. Sec. 28.2305(6), a new parole eligibility report must be prepared at least ninety days before the expiration of the twelve-month continuance period. Grants and denials of parole are appealable to the circuit court by leave. M.C.L. Sec. 791.234(5); M.S.A. Sec. 28.2304(5).

In the instant case, plaintiff was initially interviewed for parole consideration on December 3, 1984, a month before the expiration of his minimum sentence less good time. On January 2, 1985, the parole board denied parole and issued a twelve-month continuance.

Plaintiff was not scheduled for a new hearing within the following twelve months. On February 7, 1986, he filed in the circuit court a complaint for habeas corpus, alleging in pertinent part as follows:

"[5.] d. On January 2, 1986, the twelve (12) [153 MICHAPP 561] months further incarceration ordered by the Michigan Parole Board on January 2, 1985, duly expired.

"e. Respondent has refused to release your Petitioner, and the Michigan Parole Board has refused to interview your Petitioner for possible parole release or make any decision on Petitioner's possible release on parole in accordance with the mandatory requirement of MCL 791.234-.235. Respondent has cited 'prison overcrowding' as the reason your Petitioner has not been considered for parole release by the Michigan Parole Board, but Respondent refuses to take any action on behalf of Petitioner, so that Petitioner may be considered for parole release as Petitioner's twelve (12) month continuance expired on January 2, 1986. * * *

"6. Petitioner is entitled as a matter of law to parole release consideration, and a decision by the Michigan Parole Board and Respondent to either grant or deny parole release, and a failure of Respondent to insure Petitioner's said statutory right to parole release consideration mandates habeas relief.

"7. Petitioner should be ordered released from the restraint of Respondent if not given a parole board interview and decision on whether or not petitioner will be released on parole within thirty (30) days as mandated by law."

MCR 3.303 governs the procedure to be followed in an action for habeas corpus to inquire into the cause of detention. On the filing of the complaint, the court may issue a writ or an order to show cause why the writ should not be issued, unless it appears that the prisoner is not entitled to relief. MCR 3.303(D)(1). If the writ is to be answered and a hearing held at a specified time, the answer must be made, and the prisoner must be produced, at the time and place specified in the writ. MCR 3.303(K)(1). The answer must state the reason why the prisoner is detained and a copy of the written authority for such detention, if any, must be attached. [153 MICHAPP 562] MCR 3.303, subds. (N)(1)(a) and (N)(2). Failure to file an answer is contempt. MCR 3.303(N)(1). Because a habeas corpus action must be decided promptly, MCR 3.303(P), the defendant may request an adjournment only for the brief delay necessary to prepare an answer or present evidence of the cause of detention at the time for answer. MCR 3.303(Q)(2). The hearing on the return of the writ must be recorded, or if recording is not possible, the judge must prepare as soon as possible a certified narrative written report which becomes part of the record. MCR 3.303(Q)(5).

In the instant case, on February 10, 1986, the court issued a writ ordering defendant to file an answer with the court by February 21, 1986, and to appear before the court with plaintiff on February 28, 1986. The writ was served on February 19, 1986. The office of the attorney general did not file an answer as ordered, seek a continuance, or in any manner attempt to justify plaintiff's detention. The court did not hold defendant in contempt for this failure, nor did it take less drastic measures to obtain an answer. The February 28, 1986, hearing was postponed because the judge was trying a case out-of-town.

On March 5, 1986, instead of seeking to have defendant held in contempt for failure to file an answer to the writ, plaintiff filed a motion for summary disposition under MCR 2.116(C)(9), failure to state a valid defense. The office of the attorney general received the motion on March 13, 1986. Defense counsel still did not answer the writ or seek a continuance.

On March 20, 1986, the court issued an amended writ of habeas corpus, again ordering defendant to file an answer by February 21, 1986, and rescheduling the hearing for March 28, 1986. The office of the attorney general seemingly admits receipt of [153 MICHAPP 563] this writ on March 24, 1986. Again, defense counsel did not answer or seek a continuance.

On March 28, 1986, plaintiff was produced in court. Defense counsel did not appear, according to the office of the attorney general, "because of clerical error." ¹ Defense counsel still had not filed an answer to the writ or requested a continuance. What transpired in court was neither recorded nor reported by the judge. The court did not hold defendant in contempt. Instead, a "writ of habeas corpus", actually an order of discharge, was entered ordering plaintiff's unconditional discharge from custody forthwith. Plaintiff was released from prison that day. ²

On appeal, we are asked to reverse the discharge and grant defendant the authority to regain custody of plaintiff.

Appellate review of this case is severely hampered by the failure of defense counsel and the circuit court to adhere to the procedure set forth at MCR 3.303 governing habeas corpus actions and the consequent lack of a record of the proceedings below. On the scant record before us, we can only conclude that plaintiff's discharge was ordered not on the merits but in response to plaintiff's position that defendant, by failing to answer or defend, had failed to state a defense or to show legal cause for plaintiff's continued incarceration, M.C.L. Sec. [153 MICHAPP 564] 600.4352(1); M.S.A. Sec. 27A.4352(1). This was improper. A writ of habeas corpus is a writ of inquiry. 39 Am Jur 2d, Habeas Corpus, Sec. 1, p. 179. Neither MCR 3.303 nor the statutes governing habeas corpus actions contemplate a habeas corpus plaintiff's discharge in the face of a defendant's silence. Indeed, both the statutes and the court rules specifically guard against such a result by forcing a nonresponding defendant to answer the writ, either by way of contempt, MCR 3.303(N)(1), or by arresting him and holding him in close custody until he complies with the writ. M.C.L. Sec. 600.4331; M.S.A. Sec. 27A.4331. Defense counsel's display of absolute indifference to the orders of the court and the outcome of this case was totally egregious; dilitoriness standing alone, however, does not provide a sufficient basis for granting the writ. See Allen v. Perini, 424 F.2d 134 (CA 6, 1970), cert. den. 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143 (1970...