Steed v. Harry

• Decision Date: 28 July 2017
• Docket Number: Case No. 1:17-cv-540
• Parties: LARRY STEED, Petitioner, v. SHIRLEE HARRY, Respondent.
• Court: U.S. District Court — Western District of Michigan

LARRY STEED, Petitioner, v. SHIRLEE HARRY, Respondent.

Case No. 1:17-cv-540

UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

July 28, 2017

Honorable Robert J. Jonker

OPINION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

Discussion

I. Factual allegations

Petitioner Larry Steed is presently incarcerated with the Michigan Department of Corrections at the Earnest C. Brooks Correctional Facility. Petitioner is serving the following sentences: (A) 13 years, 4 months to 20 years for conspiring to deliver or manufacture less than 50 grams of cocaine; (B) life imprisonment for conspiring to deliver or manufacture 650 grams or more of cocaine; (C) 20 to 30 years for possession of 225-649 grams of cocaine; and (D) 22 years, 6 months to 45 years for delivery or manufacture of 225-649 grams of cocaine. Petitioner alleges that sentences (A) and (B) are concurrent to each other and sentences (C) and (D) are concurrent to each other, but sentences (A) and (B) are consecutive to sentences (C) and (D).

Petitioner's constitutional challenges do not relate to his convictions or his sentences as imposed; rather, they relate to his eligibility for parole. In Michigan, generally, an inmate is eligible for parole when the inmate has served a period of time equal to the minimum sentence imposed by the court for the crime of which he was convicted, less good time and disciplinary credits. MICH. COMP. LAWS § 791.234. The determination of eligibility is rendered more complex by consecutive sentences and life sentences. Id.

Life sentences, which have no minimum term, would seem to fall outside the parole system. The Michigan legislature allowed "lifers" parole consideration for the first time in 1941:

The first "lifer law" came into effect in 1941, granting parole eligibility to prisoners sentenced to life in prison for crimes other than first-degree murder after serving ten calendar years. Before its enactment, those life sentences would have to have been served in their entirety unless commuted by the Governor or a pardon was granted. The lifer law has been revised through the years, but at the time of defendant's sentencing, MCL 791.234 provided that he would be subject to the jurisdiction and authority of the parole board after serving ten calendar years. It also appears that at the time of defendant's sentencing, a perception commonly held by legal practitioners, as well as some judges, was that a "parolable life" sentence didnot mean life; rather, it meant between twelve and twenty years in prison. See, e.g., People v. Lino (After Remand), 213 Mich.App. 89, 95-98, 539 N.W.2d 545 (1995), overruled by People v. Carson, 220 Mich.App. 662, 673-674, 560 N.W.2d 657 (1996); see, also, Prisons and Corrections Section of the State Bar of Michigan, What should "parolable life" mean? Judges respond to the controversy (March 2002), available at (accessed June 24, 2005). In fact, defendant's sentencing judge also believed that a parolable life sentence was less harsh than a long indeterminate term sentence because of the earlier opportunity for parole. This belief seems to have been somewhat supported by parole data; for example, from 1941 through 1974, 416 parole-eligible lifers were paroled, averaging twelve a year.

However, it appears that there was a change in parole practice, because from 1975 through 1992 only sixty-five parole-eligible lifers were paroled, for an average of less than four a year. In 1992, the parole board was restructured, both in number and composition, and it continued the practice of the prior seventeen years in granting fewer paroles. "The primary goal of the reorganization was to increase public safety by minimizing the number of dangerous and assaultive prisoners being placed on parole." Michigan Parole Board website, Introduction (accessed June 24, 2005).

People v. Hill, 705 N.W.2d 139, 141 (Mich. Ct. App. 2005). The current "lifer" law requires terms of imprisonment ranging between 10 and 20 years before a "lifer" can be considered for parole depending on the crime for which he was convicted and whether he has committed other serious crimes. MICH. COMP. LAWS § 791.234.

Petitioner's situation is also complicated by the fact that some of his sentences are concurrent and some are consecutive. The statute provides that parole eligibility for a prisoner serving consecutive sentences is determined by adding the minimum sentences. Id. That apparently created some confusion in Petitioner's case because his life sentence is consecutive to concurrent sentences with minimums of 20 and 22 years, 6 months.

The determination of Petitioner's parole eligibility date has changed several times over the years of his incarceration. The variability of Petitioner's determined parole eligibility date has frustrated him. On July 30, 2013, Petitioner filed his first habeas petition that included thatissue. See Steed v. Berghuis, 1:13-cv-845 (W.D. Mich.) (1:13-cv-845, PageID.26) ("[W]hy [do] the parole eligibility dates keep changing."). The Court dismissed that petition on initial review reasoning:

[T]here is no constitutional or inherent right to be released before the expiration of a prison sentence. Although a state may establish a system for early release on parole, it has no duty to do so; thus, the presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole release. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 11 (1979); Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987). Rather, a liberty interest is present only if state law entitles an inmate to release on parole. Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991).

In Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994) (en banc), the Sixth Circuit, noting "the broad powers of the Michigan authorities to deny parole," held that the Michigan system does not create a liberty interest in parole. Id. at 1164-65; see also Crump v. Lafler, 657 F.3d 393, 404 (6th Cir. 2011) (holding that the adoption of specific parole guidelines since Sweeton does not lead to the conclusion that parole release is mandated upon reaching a high probability of parole); Carnes v. Engler, 76 F. App'x 79, 80 (6th Cir. 2003). In addition, the Sixth Circuit has rejected the argument that due process is implicated when changes to parole procedures and practices have resulted in incarcerations that exceed the subjective expectation of the sentencing judge. See Foster v. Booker, 595 F.3d 353, 369 (6th Cir. 2010). Finally, the Michigan Supreme Court has recognized that there exists no liberty interest in parole under the Michigan system. Glover v. Mich. Parole Bd., 596 N.W.2d 598, 603-04 (Mich. 1999).

Furthermore, an inmate has no constitutional or inherent right to early release through executive clemency or commutation. Ohio Adult Parol Auth. v. Woodard, 523 U.S. 272, 280 (1998); Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981). Moreover, because the Governor of Michigan has broad discretionary power to commute sentences, Michigan prisoners do not have a state-created liberty interest in commutation. Manning v. Unknown Parties, 56 F. App'x 710, 711 (6th Cir. 2003); Moran v. McGinnis, 1996 WL 304344, at *2 (6th Cir. June 5, 1996); Vertin v. Gabry, No. 94-2267, 1995 WL 613692, at *1 (6th Cir. Oct. 18, 1995). In the absence of a protected liberty interest, Petitioner Steed cannot raise a due process claim.

In summary, Petitioners' challenge to a state agency's response to their FOIA request is outside the scope of federal habeas review, and Petitioner Steed's claim that the parole board violated his right to due process is meritless on its face.

(1:13-cv-845, PageID.34-35.)

It appears Petitioner's parole eligibility date is now settled: June 24, 2008. (Pet. Attach. 1, ECF No. 1-1 PageID.5.) But that is the third parole eligibility date the Michigan Department of Corrections has offered Petitioner in the last year. As of the date of the Court's opinion in Steed v. Berghuis, the determined parole eligibility date was October 11, 2016. (Oct. 9, 2013 MDOC Correspondence, ECF No. 2-1, PageID.65.) Based on that date, the parole board scheduled a public hearing for February 13, 2017. (Dec. 22, 2016 MDOC Correspondence, ECF No. 2-1, PageID.69.) The hearing never took place.¹ The parole board cancelled it at the end of January, 2017, because it had been informed that Petitioner's parole eligibility date was actually August 27, 2020. (Jan. 24, 2017 MDOC Correspondence, ECF No. 2-1, PageID.71.) Petitioner filed a grievance regarding the 2020 date. The step one response to that grievance resulted in the June 24, 2008 parole eligibility determination. (Step 1 Grievance Response, ECF No. 2-1, PageID.75.)

Even though the parole board cancelled the public hearing based on what now appears to be an erroneous parole eligibility date, it reviewed Petitioner anyway. The parole board expressed no...