Witzke v. Withrow

• Decision Date: 09 November 1988
• Docket Number: No. G88-325 CA1,G87-944 CA1.,G88-325 CA1
• Parties: Scott Andrew WITZKE, Petitioner, v. Pamela K. WITHROW, Respondent. Scott Andrew WITZKE, Plaintiff, v. William J. HUDSON, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

702 F. Supp. 1338

Scott Andrew WITZKE, Petitioner, v. Pamela K. WITHROW, Respondent.

Scott Andrew WITZKE, Plaintiff, v. William J. HUDSON, et al., Defendants.

Nos. G88-325 CA1, G87-944 CA1.

United States District Court, W.D. Michigan, S.D.

November 9, 1988.

Thomas Woods, Lansing, Mich., for petitioner.

Becky Lamiman, Asst. Atty. Gen., Lansing, Mich., for respondent.

Anthony Peter Govorchin, Asst. Atty. Gen., Lansing, Mich., for defendants.

Scott Andrew Witzke, Ann Arbor, Mich., pro se.

OPINION ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION

ROBERT HOLMES BELL, District Judge.

On September 19, 1988, U.S. Magistrate Joseph G. Scoville issued a report and recommendation (R & R) in these consolidated cases. The R & R was issued pursuant to this court's order of reference dated May 31, 1988. 28 U.S.C. section 636(b)(1)(B). Both parties have objected to certain portions of the R & R. The court has reviewed de novo all factual and legal issues that any party has addressed in its objections. See 28 U.S.C. section 636(b)(1)(C). Upon independent review, the court modifies the magistrate's factual findings on three immaterial issues, adopts the remainder of the R & R, and adopts the orders proposed by the magistrate.

A. Factual Objections

The magistrate's R & R was issued after two days of evidentiary hearings, review of several deposition transcripts, and review of exhibits A through U. For the most part, the parties have not objected to the magistrate's Findings of Fact, found at pages 3 through 21 of the R & R. In response to specific objections by the parties, the Findings of Fact are modified to the following limited extent: (a) The Parole Board can revoke parole for up to 12 months, not 18 months (R & R, at 10); (b) In addition to his opportunity to address the issue of mitigation at the PV hearing, petitioner also had and exercised the opportunity to submit documents to the Parole Board after the PV hearing (R & R, at 15); (c) The word on page 41 of the R & R, third line from the bottom, should be "unconstitutional." p. 1355, infra^* The court deems each of these modifications to be immaterial to the outcome of this case. Except as modified above, the magistrate's Findings of Fact are hereby ADOPTED as the opinion of the court.

B. Legal Objections

The court has carefully reviewed the legal objections of each party and finds them to be unpersuasive, for the reasons stated below.

On the issue of exhaustion of state remedies, the court finds, on the peculiar and narrow facts of this case, that petitioner has exhausted his state remedies.

On the core issue of these cases, the court agrees that Mich.Comp.Laws 791.240a is unconstitutional as applied by the Michigan Parole Board. The court is compelled to this conclusion by a careful consideration of the undisputed facts and the application of controlling precedent to those facts. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Preston v. Piggman, 496 F.2d 270 (6th Cir.1974); Moss v. Patterson, 555 F.2d 137 (6th Cir.) (per curiam), cert. denied sub nom. Kette v. Moss, 434 U.S. 873, 98 S.Ct. 221, 54 L.Ed.2d 153 (1977).

On the issue of the proper relief in the habeas action (case G88-325), the court concurs that a new mitigation hearing, with the full panoply of Morrissey rights, is all that petitioner is entitled to. The cases cited by petitioner in support of his request for unconditional release on parole are not apposite. They deal with the circumstance in which a parolee is given no hearing on the revocation issue. The appropriate remedy for denial of procedural due-process protections in a revocation hearing is to grant a new hearing. Atkins v. Marshall, 533 F.Supp. 1324, 1329 (S.D.Ohio 1982).

Finally, the court concurs in the propriety of the recommended declaratory relief in the section 1983 case (case G87-944) and in the impropriety of injunctive relief. Any relief for past violations of petitioner's due-process rights is properly brought by habeas corpus petition. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed. 2d 439 (1973). Hence, petitioner's claims arising from the 1987 revocation of his parole are properly, and adequately, dealt with in the habeas corpus action. The second possible claim for injunctive relief concerns future revocations of petitioner's parole. On this issue, the recommended declaratory relief is sufficient. Where the defendants are government officials, the coercive force of an injunction is often unnecessary: the court may properly assume that the defendants will comply with a declaratory judgment and comport themselves accordingly in the future. See Poe v. Gerstein, 417 U.S. 281, 94 S.Ct. 2247, 41 L.Ed.2d 70 (1974) (per curiam) ("The district court properly refused to issue the injunction; for there was no allegation here and no proof that respondents would not, nor can we assume that they will not, acquiesce in the decision."); Doe v. Air Force, 812 F.2d 738 (D.C.Cir.1987). In the unlikely event that state officials disregard the court's declaratory judgment, an appropriate injunction could issue. State of Tennessee v. Herrington, 626 F.Supp. 1345, 1361 (M.D.Tenn.1986).

Accordingly, the conclusions of law set forth in the R & R are hereby ADOPTED in their entirety as the opinion of this court. The orders recommended by the magistrate (R & R, at 42-43) will issue forthwith.

MAGISTRATE'S REPORT AND RECOMMENDATION

JOSEPH G. SCOVILLE, United States Magistrate.

In these consolidated actions, Scott Witzke, a state prisoner, challenges the procedures by which his parole was revoked. Case No. G87-944 is a civil rights action brought pursuant to 42 U.S.C. § 1983. Witzke's original complaint alleged that Mich.Comp.Laws § 791.240a is unconstitutional, in that it denies parole violators in Witzke's circumstances their due-process right to a hearing on the issue of mitigation before revocation of their parole. His complaint sought an order compelling the parole authorities to grant him a new hearing. Case No. G88-325 is a habeas corpus action brought pursuant to 28 U.S.C. § 2254. In his habeas petition, Witzke claimed that the procedures by which his parole was revoked violated the Due Process Clause of the Fourteenth Amendment. His petition sought reinstatement to parole status, expungement of his record, and other relief.

By order entered on May 3, 1988, I consolidated both actions for pretrial purposes and appointed Thomas Woods, Esq., as counsel for Mr. Witzke. By order dated May 31, 1988, Judge Bell directed that I conduct a consolidated evidentiary hearing on all disputed issues in the captioned cases, pursuant to 28 U.S.C. § 636(b)(1)(B).

I conducted the evidentiary hearing on August 3 and August 18, 1988. I heard testimony from Mr. Witzke (hereafter referred to as "petitioner") and from Parole Board Chairman Hudson, Board Member Richardson, and Parole Agent Kelsau. Thomas Rasdale, an assistant clerk of the Michigan Court of Appeals, also testified on the issue of exhaustion of state remedies. I also received Exhibits A through U, without objection by either party. After the hearing, the parties submitted the depositions of Parole Board Members Moss, Johnson, Gach and Walbrecq, which were made part of the hearing record.

The crux of both cases involves the constitutionality of the procedures followed by the Parole Board in revoking petitioner's parole. Because one of the grounds for parole revocation was petitioner's conviction of a misdemeanor, the Parole Board did not afford him a full revocation hearing. The Parole Board took this action pursuant to Mich.Comp.Laws § 791.240a(1), which provides that when the parole violation arises from conviction of a felony or misdemeanor, the parolee has no right to a fact-finding hearing before parole is revoked. Petitioner contends that the statute and the Parole Board's action deprived him of his right to a hearing on the mitigation phase of the parole revocation decision, in violation of the due-process principles enunciated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and later cases. On the basis of the hearing evidence, I conclude that Mich.Comp.Laws § 791.240a(1) is unconstitutional as applied in this case and recommend that a writ of habeas corpus issue unless petitioner is granted a new parole revocation hearing.

FINDINGS OF FACT

A. Michigan's Parole Revocation System

Michigan statutory law invests a seven-member Parole Board with the power to grant, modify, or revoke paroles. Mich. Comp.Laws §§ 791.232-.241. The statute establishes a procedure for revoking the parole of a parolee charged with violation of his parole conditions. Mich.Comp.Laws § 791.239a-.240a. The statute provides, in general, that every parolee accused of a violation is entitled to a preliminary hearing within ten days of his arrest. The sole issue at the preliminary hearing is whether there is probable cause to believe that the conditions of parole have been violated. At the preliminary hearing, the parolee is accorded certain procedural rights, such as written notice of the time, place, and purpose of the preliminary hearing, disclosure of the evidence, the right to testify and present witnesses and evidence, and the right, under most circumstances, to confront and cross-examine adverse witnesses. Mich.Comp.Laws § 791.239a.

If probable cause is found, most parolees are entitled to a fact-finding hearing before a member of the Parole Board within 45 days of becoming available for return to a correctional facility. Mich.Comp.Laws § 791.240a(1). The statute again provides certain procedural safeguards at the fact-finding hearing, including written notice, the right to counsel, disclosure of the evidence, opportunity to testify, present witnesses, and cross-examine adverse witnesses, and to "present other relevant evidence in mitigation of the charges." Mich.Comp. Laws § 791.240a(2)(d). If a preponderance of the evidence...