Settle v. Parris

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

MIKE SETTLE, )

)

Petitioner, )

)

v. ) No.: 3:19-CV-515-TAV-HBG

)

MICHAEL PARRIS, )

)

Respondent. )

MEMORANDUM OPINION

The Court is in receipt of a motion for leave to proceed in forma pauperis [Doc. 1],

a pro se prisoner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 22541 [Doc.

2], and a motion for a declaratory order [Doc. 3]. For the reasons set forth below,

Petitioner’s motion to proceed in forma pauperis [Doc. 1] will be GRANTED, the petition

[Doc. 2] will be DENIED as frivolous, the motion for declaratory order [Doc. 3] will be

DENIED as moot, and this action will be DISMISSED.

I. FILING FEE

It is apparent from his motion for leave to proceed in forma pauperis [Doc. 1] that

Petitioner cannot pay the filing fee. As such, this motion [Id.] will be GRANTED.

II. PRELIMINARY REVIEW

Promptly after the filing of a petition for habeas corpus, the court must review the

petition to determine whether “it plainly appears from the face of the petition and any

1 While Petitioner states in his petition that he has filed this action under § 2241, he

challenges the fact or duration of his imprisonment. As such, the Court construes Petitioner’s

petition as filed under § 2254. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

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. Where the court makes such a

finding, the court should summarily dismiss the petition. Rule 4; see Allen v. Perini, 424

F.2d 134, 141 (6th Cir. 1970) (providing that a district court has the duty to “screen out”

petitions that lack merit on their face).

III. ANALYSIS

In his petition, Petitioner seeks to challenge the Tennessee Department of

Correction’s decision not to certify Petitioner for a parole hearing and states that he “is

challenging the procedures used to determine his parole eligibility date” based on his

assertion that these procedures amount to a due process violation because Tennessee has

adopted statutes and/or rules creating a liberty interest in parole [Doc. 2 p. 2–6].

However, Petitioner previously filed a substantively identical claim under § 1983

regarding a denial of a parole eligibility hearing that a Court in this District dismissed at

screening due to its failure to allege a constitutional violation. Settle v. Tennessee

Department of Correction, No. 3:11-CV-567-TWP-HBG (E.D. Tenn. April 18, 2012).

Petitioner appealed this dismissal to the United States Court of Appeals for the Sixth

Circuit, which affirmed the district court’s judgment. Settle v. Tennessee Department of

Correction, 487 F. App’x 290, 290–91 (6th Cir. 2012). In doing so, the Sixth Circuit set

forth the following reasoning:

Settle claims that his due process rights were violated when

he was denied a parole hearing in 2011. To establish a due

process violation, a complainant must first show that he

or she has a protected property or liberty interest in

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parole. Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668

(1979); Inmates of Orient Corr. Inst. v. Ohio State Adult

Parole Auth., 929 F.2d 233, 235 (6th Cir.1991). A liberty

interest in parole eligibility derives only from state law. See,

e.g., Crump v. Lafler, 657 F.3d 393, 397 (6th

Cir.2011); Inmates of Orient Corr. Inst., 929 F.2d at 235. We

have previously held that Tennessee law has not created a

liberty interest in parole eligibility. Tenn. Code Ann. §§ 40–

28–117(a) and 40–3–503(b); Wright v. Trammell, 810 F.2d

589, 590–91 (6th Cir.1987). Because Settle has no

substantive liberty interest in parole, the procedures used to

deny him parole cannot be challenged. See Olim v.

Wakinekona,461 U.S. 238, 250, 103 S.Ct. 1741, 75 L.Ed.2d

813 (1983); Sweeton v. Brown, 27 F.3d 1162, 1164–65 (6th

Cir.1994) (en banc). Accordingly, Settle's due process claim

is without merit.

Id.

Also, Petitioner has recently filed a substantively similar claim for habeas corpus

relief alleging a denial of due process arising out of a denial of a parole hearing that he

alleged resulted from incorrect parole eligibility date calculations that this Court dismissed

because Petitioner did not allege a constitutional violation. See Settle v. Parris, No. 3:19-

CV-302-TAV-DCP [Docs. 10 and 11] (E.D. Tenn. Oct. 16, 2019).2 In doing so, the Court

set forth the following analysis:

Petitioner’s allegations do not raise a constitutional issue. It is

fundamental that a petitioner is only entitled to federal habeas

relief if he is imprisoned in violation of the federal constitution

or federal laws. See 28 U.S.C. §§ 2241(c)(3), 2254(a). It is

also well established that there is no constitutional right to

2 Petitioner is a prolific filer of federal civil actions seeking habeas corpus relief and relief

under § 1983. Thus, it is likely that Petitioner has filed other actions asserting similar claims that

would be relevant to this action. For purposes of judicial efficiency, however, the Court only cites

these two actions, as they are sufficient to establish the frivolity of his claim for habeas corpus

relief in this action.

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parole. See Board of Pardons v. Allen, 482 U.S. 369, 373

(1987); Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Rather,

a protected liberty interest in parole exists only when State law

creates “a legitimate claim of entitlement to it[.]” Inmates of

Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d

233, 235 (6th Cir. 1991) (quoting Greenholtz v. Inmates of the

Nebraska Penal & Corr. Complex, 422 U.S. 1, 7 (1979)).

Tennessee inmates do not have an entitlement to parole; they

have, at most “a mere hope that the benefit will be obtained.”

Wright v. Trammell, 810 F.2d 589, 590-91 (6th Cir. 1987)

(citation omitted); see also Tenn. Code Ann. §§ 40-28-117(a)

(defining parole as “a privilege and not a right” and holding

that if parole board determines that parole is appropriate “the

prisoner may be paroled”). Because Tennessee law provides

the parole board with discretion in determining parole

eligibility, Petitioner has no protected liberty interest in parole

and no basis for a challenge to the calculation of his parole

eligibility.

Id. [Doc. 10 p. 3–4].

For these same reasons, the petition for habeas corpus relief in this action fails to

state a cognizable claim for violation of Petitioner’s constitutional rights. Id.

IV. CERTIFICATE OF APPEALABILITY

The Court must now consider whether to issue a certificate of appealability

(“COA”), should Petitioner file a notice of appeal. Under 28 U.S.C. § 2253(a) and (c), a

petitioner may appeal a final order in a habeas proceeding only if he is issued a COA, and

a COA may only be issued where a Petitioner has made a substantial showing of the denial

of a constitutional right. 28 U.S.C. § 2253(c)(2). The Court finds that jurists of reason

would not debate the Court’s finding that Petitioner has not made a substantial showing of

the denial of a constitutional right. As such, a COA shall not issue.

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V. CONCLUSION

For the reasons set forth above, Petitioner’s motion for leave to proceed in forma

pauperis [Doc. 1] will be GRANTED, this § 2254 petition [Doc. 2] will be DENIED as

frivolous, Petitioner’s motion for a declaratory order [Doc. 3] will be DENIED as moot,

and this action will be DISMISSED. Also, Petitioner will be NOTIFIED that continued

filing of meritless actions based on substantively similar facts and legal theories may

subject him to filing restrictions or other sanctions. Further, the Court CERTIFIES that

any appeal from this action would not be taken in good faith and would be totally frivolous.

Fed. R. App. P. 24.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE

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