Just posted this one to the Sixth Circuit blog too.
United States v. Duval, Nos. 12-2338/2339 (6th Cir. Feb. 7, 2014) (for publication).
Med MJ issues.
Panel of Judges Cole, Gilman, Donald.
Issues:
* Was compliance with Mich Med MJ Act (MMMA) relevant to search-warrant application? COA said no.
* Did the indictment allege a federal crime even though one of the defendants was a registered "caregiver" under the MMMA and qualified for the "practitioner exception" under 21 U.S.C. 802(21)? COA said yes.
* COA affirmed district court.
Discussion:
* Defendants said search warrant invalid b/c deputy omitted defendants' status as registered patients and caregivers under Mich law. Gov said issue waived b/c not raised in dist ct. COA rejected gov's contention---defense counsel probed issue sufficiently in dist ct, though not quite explicitly.
* Deputy did not have "clear and uncontroverted evidence" that defendants were complying fully with MMMA at time of search-warrant application. Actually seemed like the defendants were not complying, given what officer knew. The deputy did not know another officer had advised the defendants earlier about complying with the MMMA. So failing to include that info in warrant application could not be deliberate. Info not imputed here. No evidence the officers communicated.
* Application for warrant was to state magistrate, rather than the federal magistrate judge, despite fact deputy was detailed to a federal agency. But deputy's position gave him flexibility to choose whether investigation would go state or federal.
* No error in failing to suppress evidence.
* Defendants waived and forfeited chance to challenge sufficiency of indictment. Issue raised first time on appeal. Won't fly unless the alleged defect is jurisdictional. No jurisdictional defect here. COA cited United States v. Marcinkewciz, No. 12-2441 (6th Cir. Oct. 29, 2013).
Showing posts with label Michigan Law. Show all posts
Showing posts with label Michigan Law. Show all posts
Friday, February 14, 2014
Thursday, February 13, 2014
Escape as Crime of Violence? No!
Way to go, Mr. Geoff Upshaw! Mr. Upshaw is a member of our WD Mich CJA Panel and got this great victory!
United States v. Covington, 738 F.3d 759 (6th Cir. 2014).
Panel of Judges Rogers, Stranch, and Donald.
Is prison escape under MCL 750.193 a crime of violence? No.
The plea colloquy from the state escape conviction showed that the defendant had left the correction center with permission on a laundry pass and returned ten minutes late. Believing he would be sent back to prison for violating the center's rules, the defendant went out a window, jumped a fence, and ran through a wooded area to escape.
Court applied Descamps.
Because the statute gives several ways in which it may be violated, including some escapes that involve the element of breaking and some that do not, the statute is divisible for Descamps purposes. Modified categorical approach applies.
Offense here was a breaking-and-escaping offense.
COA reminds us that the powder-keg theory is no longer persuasive.
Court found that breaking and escaping from prison and burglary of a dwelling share only one risk: the potential for discovery and capture. The COA says this factor is not one to consider post-Anglin. Even if the Court were to consider such a risk of confrontation, the risk posed by breaking into a home "is considerably greater than the risk posed by breaking out of a prison." And even if the risks associated with breaking and escaping from prison could be comparable to those associated with burglary, the offense at issue "also criminalizes walking out of an unguarded area by pushing open a partially ajar door. The statute thus covers a much 'broader swath of conduct' than what might arguably qualify as a crime of violence."
Not a crime of violent.
Judge Stranch concurred:
In Denson, the judge had put the "divisibility" issue under Descamps at the end of the analysis. The judge now feels that this placement led "to a somewhat redundant analysis." The proper order for the "analysis after Descamps is to put the 'divisibility' question first." If a statute is divisible, a court may consider the Shepard documents briefly to determine the alternative offense of which the defendant was convicted. From that point, the court should apply the same categorical test used for indivisible statutes.
United States v. Covington, 738 F.3d 759 (6th Cir. 2014).
Panel of Judges Rogers, Stranch, and Donald.
Is prison escape under MCL 750.193 a crime of violence? No.
The plea colloquy from the state escape conviction showed that the defendant had left the correction center with permission on a laundry pass and returned ten minutes late. Believing he would be sent back to prison for violating the center's rules, the defendant went out a window, jumped a fence, and ran through a wooded area to escape.
Court applied Descamps.
Because the statute gives several ways in which it may be violated, including some escapes that involve the element of breaking and some that do not, the statute is divisible for Descamps purposes. Modified categorical approach applies.
Offense here was a breaking-and-escaping offense.
COA reminds us that the powder-keg theory is no longer persuasive.
Court found that breaking and escaping from prison and burglary of a dwelling share only one risk: the potential for discovery and capture. The COA says this factor is not one to consider post-Anglin. Even if the Court were to consider such a risk of confrontation, the risk posed by breaking into a home "is considerably greater than the risk posed by breaking out of a prison." And even if the risks associated with breaking and escaping from prison could be comparable to those associated with burglary, the offense at issue "also criminalizes walking out of an unguarded area by pushing open a partially ajar door. The statute thus covers a much 'broader swath of conduct' than what might arguably qualify as a crime of violence."
Not a crime of violent.
Judge Stranch concurred:
In Denson, the judge had put the "divisibility" issue under Descamps at the end of the analysis. The judge now feels that this placement led "to a somewhat redundant analysis." The proper order for the "analysis after Descamps is to put the 'divisibility' question first." If a statute is divisible, a court may consider the Shepard documents briefly to determine the alternative offense of which the defendant was convicted. From that point, the court should apply the same categorical test used for indivisible statutes.
Thursday, May 24, 2012
Lafler Playing Out: IAC
So here we go: we're starting to see ineffective-assistance cases fleshing out Lafler.
Titlow v. Burt, No. 10-2488 (6th Cir. May 22, 2012) (for publication).
Have a great Memorial Day weekend, everyone!
Chief Judge Batchelder, Judges Clay and Gilman.
Chief Judge Batchelder dissented.
State prisoner appealed dist ct's denial of her habeas petition. She was convicted of second-degree murder. COA reversed. Ineffective-assistance-of-counsel claim arising out of plea-bargaining process had merit. Inmate's second attorney was ineffective b/c he failed to investigate case before recommending that the inmate withdraw her plea. Under plea, inmate would have received a 7-to15-year sentence. After being convicted by a jury, the inmate received a 20-to-40-year sentence. COA conditionally granted the habeas petition and gave the state 90 days to reoffer the original plea or to release the inmate.
Plea:
* Inmate was represented by an attorney who negotiated a plea deal. Charges reduced to manslaughter, 7-to-15-year sentence. Defendant to submit to a poly and testify against co-defendant. Defendant would not challenge the prosecutor's recommended sentencing range on appeal.
* Defendant pleaded guilty.
* After plea, the defendant spoke with a sheriff's deputy at the local jail. This fellow advised the defendant not to plead guilty if she believed she was innocent. He referred the defendant to another attorney. This attorney agreed to represent the defendant in exchange for jewelry and media rights.
* Defendant withdrew her plea. Based on defendant declining to testify against the co-defendant.
Post-Plea Proceedings:
* The new attorney did not obtain the file, inspect the state's discovery materials, or speak with the prior attorney for a month and a half after the withdrawal of the plea.
* After obtaining the file, the attorney moved to withdraw. Claimed lack of $$$ from client.
* State court appointed a third attorney.
* Jury convicted the defendant and she got 20 to 40 years of custody. Co-defendant was acquitted.
* Mich Ct App affirmed sentence on direct appeal and rejected all constitutional challenges. Mich S Ct denied leave to appeal. Motion for relief from judgment denied. Mich Ct App denied leave to appeal that decision.
Habeas Review:
* The inmate sought fed habeas review. Dist ct denied, but granted certificate of appealability.
COA Conclusions:
* While decision to plead guilty rests with client, attorney has duty to inform client of options. Attorney must reasonably investigate case. Defendants have the right to expect counsel to review their cases and explain the elements, evidence, and sentencing exposure.
* As Lafler has told us, "the simple fact of a higher sentence after trial is sufficient to demonstrate prejudice" for an IAC claim.
* Substantial disparity b/t plea offer and post-trial sentence provides evidence that a defendant would have accepted a plea deal.
* COA recognizes that "defendants may have legitimate reasons for continuing to maintain their innocence during and even after plea negotiations."
* No need for a defendant to support with objective evidence an assertion that they would have accepted a plea offer.
* No evidence that the second attorney explained the elements of the charges, explained the defendant's sentencing exposure, or discussed the evidence. Attorney failed in his obligations.
* Not sound professional judgment or strategic choice.
* Inmate can show the court would have accepted the plea and the sentence would have been less. The court accepted the plea the first time around. Sentence the inmate got was substantially higher than the one available under the plea.
Remedy:
* Lafler kind of leaves this door open. . . .
* Problem here is the plea deal was based in part on the inmate's agreement to cooperate against the co-defendant. Co-defendant was acquitted and then died, so that basis for the plea deal is now gone.
* State should reoffer the plea. State trial court would then have discretion to vacate the trial conviction and accept the plea or leave the conviction undisturbed. State court should recognize the plea deal as a "baseline" to consult in fashioning an appropriate remedy.
* But COA acknowledges there may be a problem if the state court just reimposes the last sentence. But Lafler says the state court must at least consult the initital plea agreement in crafting a new sentence. Ct's discretion is not unfettered. If there's a problem (eg, new sentence is greater than origianl plea deal), the later remedy in fed ct is a question for another day.
Chief Judge Batchelder's dissent:
* Mich Ct App's denial of IAC claim was reasonable.
* It was not counsel's advice that motivated the defendant to withdraw her plea. And even if counsel encouraged the withdrawal, such advice did not fall below an objective standard of reasonableness.
* Counsel represented the inmate for only three days before the plea withdrawal. No time to review case file.
* Lafler distinguishable b/c that petitioner "presented actual evidence that he received deficient advice."
* Lafler does not require the trial ct to consult the original plea agreement. Lafler "simply says that the 'baseline' of the original plea offer 'can be consulted in finding a remedy.'"
* Lafler does not require resentencing.
Titlow v. Burt, No. 10-2488 (6th Cir. May 22, 2012) (for publication).
Have a great Memorial Day weekend, everyone!
Chief Judge Batchelder, Judges Clay and Gilman.
Chief Judge Batchelder dissented.
State prisoner appealed dist ct's denial of her habeas petition. She was convicted of second-degree murder. COA reversed. Ineffective-assistance-of-counsel claim arising out of plea-bargaining process had merit. Inmate's second attorney was ineffective b/c he failed to investigate case before recommending that the inmate withdraw her plea. Under plea, inmate would have received a 7-to15-year sentence. After being convicted by a jury, the inmate received a 20-to-40-year sentence. COA conditionally granted the habeas petition and gave the state 90 days to reoffer the original plea or to release the inmate.
Plea:
* Inmate was represented by an attorney who negotiated a plea deal. Charges reduced to manslaughter, 7-to-15-year sentence. Defendant to submit to a poly and testify against co-defendant. Defendant would not challenge the prosecutor's recommended sentencing range on appeal.
* Defendant pleaded guilty.
* After plea, the defendant spoke with a sheriff's deputy at the local jail. This fellow advised the defendant not to plead guilty if she believed she was innocent. He referred the defendant to another attorney. This attorney agreed to represent the defendant in exchange for jewelry and media rights.
* Defendant withdrew her plea. Based on defendant declining to testify against the co-defendant.
Post-Plea Proceedings:
* The new attorney did not obtain the file, inspect the state's discovery materials, or speak with the prior attorney for a month and a half after the withdrawal of the plea.
* After obtaining the file, the attorney moved to withdraw. Claimed lack of $$$ from client.
* State court appointed a third attorney.
* Jury convicted the defendant and she got 20 to 40 years of custody. Co-defendant was acquitted.
* Mich Ct App affirmed sentence on direct appeal and rejected all constitutional challenges. Mich S Ct denied leave to appeal. Motion for relief from judgment denied. Mich Ct App denied leave to appeal that decision.
Habeas Review:
* The inmate sought fed habeas review. Dist ct denied, but granted certificate of appealability.
COA Conclusions:
* While decision to plead guilty rests with client, attorney has duty to inform client of options. Attorney must reasonably investigate case. Defendants have the right to expect counsel to review their cases and explain the elements, evidence, and sentencing exposure.
* As Lafler has told us, "the simple fact of a higher sentence after trial is sufficient to demonstrate prejudice" for an IAC claim.
* Substantial disparity b/t plea offer and post-trial sentence provides evidence that a defendant would have accepted a plea deal.
* COA recognizes that "defendants may have legitimate reasons for continuing to maintain their innocence during and even after plea negotiations."
* No need for a defendant to support with objective evidence an assertion that they would have accepted a plea offer.
* No evidence that the second attorney explained the elements of the charges, explained the defendant's sentencing exposure, or discussed the evidence. Attorney failed in his obligations.
* Not sound professional judgment or strategic choice.
* Inmate can show the court would have accepted the plea and the sentence would have been less. The court accepted the plea the first time around. Sentence the inmate got was substantially higher than the one available under the plea.
Remedy:
* Lafler kind of leaves this door open. . . .
* Problem here is the plea deal was based in part on the inmate's agreement to cooperate against the co-defendant. Co-defendant was acquitted and then died, so that basis for the plea deal is now gone.
* State should reoffer the plea. State trial court would then have discretion to vacate the trial conviction and accept the plea or leave the conviction undisturbed. State court should recognize the plea deal as a "baseline" to consult in fashioning an appropriate remedy.
* But COA acknowledges there may be a problem if the state court just reimposes the last sentence. But Lafler says the state court must at least consult the initital plea agreement in crafting a new sentence. Ct's discretion is not unfettered. If there's a problem (eg, new sentence is greater than origianl plea deal), the later remedy in fed ct is a question for another day.
Chief Judge Batchelder's dissent:
* Mich Ct App's denial of IAC claim was reasonable.
* It was not counsel's advice that motivated the defendant to withdraw her plea. And even if counsel encouraged the withdrawal, such advice did not fall below an objective standard of reasonableness.
* Counsel represented the inmate for only three days before the plea withdrawal. No time to review case file.
* Lafler distinguishable b/c that petitioner "presented actual evidence that he received deficient advice."
* Lafler does not require the trial ct to consult the original plea agreement. Lafler "simply says that the 'baseline' of the original plea offer 'can be consulted in finding a remedy.'"
* Lafler does not require resentencing.
Friday, May 11, 2012
Interesting Glimpse into MDOC Issues
Mosholder v. Barnhardt, No. 10-2586 (6th Cir. May 11, 2012) (for publication).
Panel of Judges Cole, Stranch, and Carr (N.D. Ohio).
Plaintiff-appellant appealed grant of summary judgment on her First Amendment retaliation claim. The plaintiff had been a corrections officer for MDOC at the Lapeer Thumb Correctional Facility. She was the institution's school officer, so she would patrol the school and discipline inmates as needed.
The facility held a rap musical competition for youthful offenders in 2008. The plaintiff claimed she heard gang references and saw gang signs during the competition. The defendant wardens claimed they saw nothing of the sort.
The plaintiff sent a letter to several Michigan state representatives and senators, expressing concern over the way the rap competition was conducted. She also cited safety concerns at the facility and listed incidents.
The plaintiff was reassigned to a less favorable position in the facility. She sued in state ct and the case was removed to federal ct. The plaintiff brought a First Amendment retaliation claim. The COA reversed the dist ct's grant of summary judgment for the defendant-appellees and remanded.
The case is interesting b/c it provides a little look into MDOC concerns, programs at MDOC facilities, and treatment of youthful offenders. The events took place a few years ago, so things may have changed, but the descriptions provide a look at a state correctional facility.
Click here for the case.
Panel of Judges Cole, Stranch, and Carr (N.D. Ohio).
Plaintiff-appellant appealed grant of summary judgment on her First Amendment retaliation claim. The plaintiff had been a corrections officer for MDOC at the Lapeer Thumb Correctional Facility. She was the institution's school officer, so she would patrol the school and discipline inmates as needed.
The facility held a rap musical competition for youthful offenders in 2008. The plaintiff claimed she heard gang references and saw gang signs during the competition. The defendant wardens claimed they saw nothing of the sort.
The plaintiff sent a letter to several Michigan state representatives and senators, expressing concern over the way the rap competition was conducted. She also cited safety concerns at the facility and listed incidents.
The plaintiff was reassigned to a less favorable position in the facility. She sued in state ct and the case was removed to federal ct. The plaintiff brought a First Amendment retaliation claim. The COA reversed the dist ct's grant of summary judgment for the defendant-appellees and remanded.
The case is interesting b/c it provides a little look into MDOC concerns, programs at MDOC facilities, and treatment of youthful offenders. The events took place a few years ago, so things may have changed, but the descriptions provide a look at a state correctional facility.
Click here for the case.
Thursday, April 5, 2012
ACCA Disappointment: DVs Qualify
United States v. Kearney, No. 10-1532 (6th Cir. Apr. 5, 2012) (published).
Panel of Judges Merritt, Clay, and Sutton. J. Merritt dissented.
ACCA issue.
Priors were for domestic violence: 93-day misdemeanors under Mich law. But the max penalty increased for D b/c of a recidivism enhancement. Statute is the familiar MCL 750.81(2). Assault or assault and battery.
COA recognized that touching was enough to sustain a conviction under Mich law.
PSR showed that the offenses involved punching, kicking, and stomping the victim for the first conviction and striking the victim with an unknown object for the second conviciton. The D did not dispute these allegations.
Interesting footnote (#4): it's improper to rely on a PSR to determine whether a prior offense counts for ACCA purposes, but COA wouldn't address that issue b/c defense had not objected in dist ct. COA does cite United States v. Wynn, 579 F.3d 567 (6th Cir. 2009).
Will a prior conviciton enhanced b/c of a recidivism enhancement count for ACCA purposes? Yes. COA cites United States v. Rodriquez, 553 U.S. 377 (2008).
The COA cites Johnson v. United States, 130 S. Ct. 1265 (2010). But it does so in the context of considering recidivism enhancements. Perhaps it is b/c the nature of the conduct was known, but there is no argument on the level of force required to be an ACCA predicate conviction or any Begay argument regarding the conviction's failure to fit under the residual clause.
So those avenues remain open.
(Hey, it's hard to find free pics. But take it as a pirate exhortation to keep raising these issues!)
J Merritt reads Johnson broadly in his dissent: state misdemeanors enhanced into felonies b/c of a similar prior misdemeanor are not the type of predicate offenses the ACCA contemplates.
He finds: "Turning misdemeanor domestic abuse statutes into predicate offenses under the federal 15-year statute when the wife or husband violates the local statute twice seems a far cry from the type of recidivism Congress had in mind when it decided to take the sentencing process away from the federal sentencing judge and impose a long mandatory sentence."
He also cites the rule of lenity.
Panel of Judges Merritt, Clay, and Sutton. J. Merritt dissented.
ACCA issue.
Priors were for domestic violence: 93-day misdemeanors under Mich law. But the max penalty increased for D b/c of a recidivism enhancement. Statute is the familiar MCL 750.81(2). Assault or assault and battery.
COA recognized that touching was enough to sustain a conviction under Mich law.
PSR showed that the offenses involved punching, kicking, and stomping the victim for the first conviction and striking the victim with an unknown object for the second conviciton. The D did not dispute these allegations.
Interesting footnote (#4): it's improper to rely on a PSR to determine whether a prior offense counts for ACCA purposes, but COA wouldn't address that issue b/c defense had not objected in dist ct. COA does cite United States v. Wynn, 579 F.3d 567 (6th Cir. 2009).
Will a prior conviciton enhanced b/c of a recidivism enhancement count for ACCA purposes? Yes. COA cites United States v. Rodriquez, 553 U.S. 377 (2008).
The COA cites Johnson v. United States, 130 S. Ct. 1265 (2010). But it does so in the context of considering recidivism enhancements. Perhaps it is b/c the nature of the conduct was known, but there is no argument on the level of force required to be an ACCA predicate conviction or any Begay argument regarding the conviction's failure to fit under the residual clause.
So those avenues remain open.
J Merritt reads Johnson broadly in his dissent: state misdemeanors enhanced into felonies b/c of a similar prior misdemeanor are not the type of predicate offenses the ACCA contemplates.
He finds: "Turning misdemeanor domestic abuse statutes into predicate offenses under the federal 15-year statute when the wife or husband violates the local statute twice seems a far cry from the type of recidivism Congress had in mind when it decided to take the sentencing process away from the federal sentencing judge and impose a long mandatory sentence."
He also cites the rule of lenity.
Tuesday, September 20, 2011
A Little Mich Habeas Action to Start the Week
Crump v. Lafler, No. 09-1073 (6th Cir. September 20, 2011) (to be published). Panel of Judges Cole, Gibbons, and Cleland (E.D. Mich.). Judge Cole dissented.
Petitioner argued that Mich law governing parole created a liberty interest under the Fourteenth Amendment enforceable under 28 U.S.C. 2254. Court found that, despite Mich classifying a parole-eligible inmate as having a high probability of release, actual release determinations are uncertain and the parole board has broad discretion. There is no enforceable claim of entitlement to release. Ct affirmed dismissal of the petition.
Petitioner convicted of CSC 3rd and sentenced to 3 to 22.5 years. Also picked up a cocaine charge while on bond for the CSC. Got 7 to 20 (consecutive to the CSC) for the cocaine. Petitioner became eligible for parole in '08. He was marked as having a high probability of parole. But after the parole-board interview, the board denied parole for 18 months.
Petitioner argued that the board relied on a seven-year-old psych report that could not adequately reflect his risk of recidivism in '08. He raised other arguments regarding the board's reasons for denying parole. Petitioner filed a "motion to show cause" in federal court (W.D. Mich.), which the court interpreted as a 2254. Petitioner argued that board's decision was not supported by evidence and constituted a deprivation of liberty w/o due process. The magistrate judge recommended dismissal for failure to raise a meritorious federal claim. The district court adopted the recommendation and dismissed the petition. The ct also denied a cert of appealability. Petitioner appealed; the COA granted a certificate of appealability.
Court reiterated that "There is no constitutional or inherent right of a convicted person to be conditionally released before expiration of a valid sentence." States may establish parole systems, but there is no duty to do so. The Supreme Court found that Nebraska's parole system (in 1979) should be afforded some constitutional scrutiny b/c the statutory scheme was unique, ordering that an inmate SHALL be released unless certain factors are present. The same was true of Montana's system. And the reasoning applied even in cases where the parole board had broad discretion. Even if the board has discretion, if the board determines, in its discretion, that the factors are met such that the statute requires release, there is a liberty interest.
The Sixth Circuit, sitting en banc, decided in Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994), that Michigan's parole system does not create a liberty interest. The Sweeton decision, however, was not dispositive b/c Mich had since amended the parole system to curtail discretion.
But Michigan's system does not presume release (e.g., release mandated unless certain factors present). Under the Mich system, any expectation of release is limited to a class of inmates. So at best, only a limited class of inmates could have a potential liberty interest. And this class is not readily discernible from the statute. And the reasons the parole board could use to deny parole are ambiguous in the statute: there is very broad discretion. Beyond this discretion, there is the issue that "the classification into which each prisoner is placed is a 'probability.' While Petitioner may have been classified as a 'high probability of parole,' a probability does not equal a presumption."
Conclusions:
Mich's amendments to the parole system do not change the holding in Sweeton. "There is no 'legitimate claim of entitlement to' parole, . . . and thus no liberty interest in parole."
Judge Cole dissented. He found that under Supreme Court precedent Michigan's parole system creates a presumption that release will be granted. There is a liberty interest for inmates classified with a "high probability of parole."
Both the majority and the dissent are fun to read. The language is energetic and the writers use entertaining and colorful analogies, examples, and quotes.
Petitioner argued that Mich law governing parole created a liberty interest under the Fourteenth Amendment enforceable under 28 U.S.C. 2254. Court found that, despite Mich classifying a parole-eligible inmate as having a high probability of release, actual release determinations are uncertain and the parole board has broad discretion. There is no enforceable claim of entitlement to release. Ct affirmed dismissal of the petition.
Petitioner convicted of CSC 3rd and sentenced to 3 to 22.5 years. Also picked up a cocaine charge while on bond for the CSC. Got 7 to 20 (consecutive to the CSC) for the cocaine. Petitioner became eligible for parole in '08. He was marked as having a high probability of parole. But after the parole-board interview, the board denied parole for 18 months.
Petitioner argued that the board relied on a seven-year-old psych report that could not adequately reflect his risk of recidivism in '08. He raised other arguments regarding the board's reasons for denying parole. Petitioner filed a "motion to show cause" in federal court (W.D. Mich.), which the court interpreted as a 2254. Petitioner argued that board's decision was not supported by evidence and constituted a deprivation of liberty w/o due process. The magistrate judge recommended dismissal for failure to raise a meritorious federal claim. The district court adopted the recommendation and dismissed the petition. The ct also denied a cert of appealability. Petitioner appealed; the COA granted a certificate of appealability.
Court reiterated that "There is no constitutional or inherent right of a convicted person to be conditionally released before expiration of a valid sentence." States may establish parole systems, but there is no duty to do so. The Supreme Court found that Nebraska's parole system (in 1979) should be afforded some constitutional scrutiny b/c the statutory scheme was unique, ordering that an inmate SHALL be released unless certain factors are present. The same was true of Montana's system. And the reasoning applied even in cases where the parole board had broad discretion. Even if the board has discretion, if the board determines, in its discretion, that the factors are met such that the statute requires release, there is a liberty interest.
The Sixth Circuit, sitting en banc, decided in Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994), that Michigan's parole system does not create a liberty interest. The Sweeton decision, however, was not dispositive b/c Mich had since amended the parole system to curtail discretion.
But Michigan's system does not presume release (e.g., release mandated unless certain factors present). Under the Mich system, any expectation of release is limited to a class of inmates. So at best, only a limited class of inmates could have a potential liberty interest. And this class is not readily discernible from the statute. And the reasons the parole board could use to deny parole are ambiguous in the statute: there is very broad discretion. Beyond this discretion, there is the issue that "the classification into which each prisoner is placed is a 'probability.' While Petitioner may have been classified as a 'high probability of parole,' a probability does not equal a presumption."
Conclusions:
Mich's amendments to the parole system do not change the holding in Sweeton. "There is no 'legitimate claim of entitlement to' parole, . . . and thus no liberty interest in parole."
Judge Cole dissented. He found that under Supreme Court precedent Michigan's parole system creates a presumption that release will be granted. There is a liberty interest for inmates classified with a "high probability of parole."
Both the majority and the dissent are fun to read. The language is energetic and the writers use entertaining and colorful analogies, examples, and quotes.
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