Michael Bailey v. Lyneal Wainwright

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0051p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHAEL K. BAILEY, ┐

Petitioner-Appellant, │

│

> No. 18-3581

v. │

│

│

LYNEAL WAINWRIGHT, Warden, │

Respondent-Appellee. │

│

┘

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 3:18-cv-00881—Dan A. Polster, District Judge.

Argued: October 22, 2019

Decided and Filed: February 20, 2020

Before: SUTTON, KETHLEDGE, and STRANCH, Circuit Judges.

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COUNSEL

ARGUED: Erin E. Cady, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant. Jerri

Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

ON BRIEF: Erin E. Cady, Erin E. Murphy, KIRKLAND & ELLIS LLP, Washington, D.C., for

Appellant. Jerri Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,

Ohio, for Appellee.

SUTTON, J., delivered the opinion of the court in which KETHLEDGE, J., joined.

STRANCH, J. (pp. 6–8), delivered a separate dissenting opinion.

No. 18-3581 Bailey v. Wainwright Page 2

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OPINION

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SUTTON, Circuit Judge. Michael Bailey petitioned a federal district court for a writ of

habeas corpus because he believes the Ohio Parole Board violated his right to due process by

relying on inaccurate records about the nature of his underlying murder conviction. The district

court dismissed the § 2254 petition because it did not state a plausible claim for habeas relief.

We affirm.

I.

We may never know exactly what happened in the Dutch Village Carryout, a roadside

store near Toledo, Ohio, on December 14, 1974. But we do know that an Ohio jury believed

(beyond a reasonable doubt) that Bailey murdered Thomas Cannon, the Carryout’s clerk. Bailey

does not dispute his conviction for Cannon’s murder, but he does dispute how Ohio’s parole

board has described his crime. As Bailey tells it, he entered the store at his accomplice’s behest,

robbed the cash register at gunpoint, then shot Cannon twice—once in the neck, once in the

head. As the Ohio Parole Board tells it, Bailey entered the store, robbed Cannon, forced him to

the ground, “told him . . . exactly what he was planning on doing,” placed the gun to the back of

his head and shot him “execution style.” R.1 at 18. The Board also ascribes to Bailey motives he

believes inaccurate: “[H]e was in need of money and planned on performing robberies until he

had the amount needed and he stated the only way he was going to be successful was to kill all

witnesses.” Id.

Bailey first learned about the Board’s description in 2016. Two years before, the Ohio

Supreme Court had ruled that Ohio prisoners had a right under Ohio law to a factually accurate

parole record. State ex rel. Keith v. Ohio Adult Parole Auth., 24 N.E.3d 1132, 1137 (Ohio 2014).

To vindicate this right, several Ohio prisoners, including Bailey, successfully petitioned the

Board for their parole candidate information sheets, which include a description of the prisoner’s

offense. Bailey reviewed his sheet and discovered that the Board’s version of events did not

No. 18-3581 Bailey v. Wainwright Page 3

match his recollection. He asked the agency, as a result, to edit the sheet’s description. Bailey

and the Board corresponded about the alleged inaccuracies for the next several months.

The Board eventually sent him a letter containing an updated sheet. Except for changing

the date of his offense (the sheet initially listed it as December 14, 1971), the description of

Bailey’s crime remained the same. The letter explained that the Board had reviewed Bailey’s

pre-sentence investigation report and modified his sheet accordingly. This struck Bailey as odd,

because the trial court had sentenced him minutes after his conviction, suggesting the State never

created a pre-sentence investigation report. When Bailey pointed out this discrepancy, the Board

admitted that it had inadvertently described Bailey’s post-sentence investigation report as his

pre-sentence investigation report. But the letter offered no other explanation about why the

description of Bailey’s crime remained the same. Convinced the Board had gotten it wrong,

Bailey ordered his trial transcript and sent the Board another letter offering to meet with a

representative to show them that testimony at the trial contradicted the description in his sheet.

Bailey also filed a motion with the Lucas County Court of Common Pleas to correct his parole

record. The Board and the court denied his request.

Bailey appealed the court’s decision. An Ohio appellate court affirmed, noting that the

lower court lacked jurisdiction to hear Bailey’s motion. The Ohio Supreme Court denied

Bailey’s request for a discretionary appeal.

Bailey took his case to federal court, filing this habeas petition under 28 U.S.C. § 2254.

The Board violated his Fourteenth Amendment right to due process, he alleged, when it refused

to investigate his record and correct inaccuracies in its description of his crime. The district

court dismissed his petition and his motion for reconsideration on the ground that he failed to

state a plausible claim for habeas corpus relief. We granted Bailey a certificate of appealability.

II.

Section 2254(a) permits courts to “entertain an application for a writ of habeas

corpus . . . only on the ground that [a petitioner] is in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2254(a). Most habeas cases implicate the “in

custody” or “in violation of” federal law requirement by themselves. We face a different

No. 18-3581 Bailey v. Wainwright Page 4

problem—a prisoner who does not purport to be in custody in violation of federal law, but who is

in custody, complains of an unconnected violation of federal law, and claims a right to proceed

all the same under § 2254(a).

The words “in custody” convey any conditions that “significantly restrain” a petitioner’s

“liberty,” Jones v. Cunningham, 371 U.S. 236, 243 (1963), such as imprisonment, parole

restrictions, or consecutive sentences. Peyton v. Rowe, 391 U.S. 54, 64–65 (1968) (physical

restraint and consecutive sentences); Jones, 371 U.S. at 242–43 (parole). The phrase “in

violation of the Constitution or laws or treaties of the United States” has an equally

straightforward meaning. A petitioner must claim that his custody violates federal law, not state

law, not some other source of law. Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam).

Bailey satisfies each of these requirements in isolation. He is “in custody” because he is

serving a life sentence. And his petition rests on a violation of federal law because he claims that

Ohio violated his Fourteenth Amendment due process rights. But he has not tied the two

together. Bailey does not contend that he is in custody in violation of federal law—in other

words, that he is in custody due to a violation of federal law. At its core, Bailey’s petition

alleges only that he has been deprived of an accurate parole record in violation of federal law.

That kind of claim falls outside § 2254(a)’s domain.

Consider Bailey’s complaints. He argues, first, that Ohio created a protected liberty

interest in an accurate parole record and deprived him of that interest without due process when

the Board failed to correct the alleged inaccuracies in the file. He argues, second, that due

process independently prevents the Board from making arbitrary decisions, such as refusing to

correct a flawed parole record. The problem with both theories is the same: Bailey does not

explain how either of them would cause him to obtain parole or otherwise change his custody

status.

He does not make this argument because he cannot make this argument. Ohio does not

give inmates a right to parole; the Board has authority to grant or deny a candidate’s application

at its discretion. Keith, 24 N.E.3d at 1135–36. As a result, Bailey cannot argue that, but for the

allegedly inaccurate description, the Board would grant him parole.

No. 18-3581 Bailey v. Wainwright Page 5

Bailey claims that two of our cases, Adams v. Bradshaw and Terrell v. United States,

make his application cognizable. Not so.

Adams treated a state prisoner’s attack on Ohio’s lethal-injection procedures as a claim

that, “if successful, could render his death sentence effectively invalid.” 644 F.3d 481, 483 (6th

Cir. 2011) (per curiam). That case supports our conclusion, not Bailey’s. A challenge to a

judgment, including one based on the method of implementing the sentence, challenges the

extent of an inmate’s custody. See Nelson v. Campbell, 541 U.S. 637, 644 (2004)

(“[A] constitutional challenge seeking to permanently enjoin the use of lethal injection may

amount to a challenge to the fact of the sentence itself.”).

Terrell involved two federal prisoners using a § 2241 petition to allege that the federal

government violated their due process rights because it did not provide them in-person parole

hearings. 564 F.3d 442, 445 (6th Cir. 2009). We held that the district court had jurisdiction over

their petition, even though the prisoners did not challenge their custody. Id. But our

interpretation of § 2241 does not control our interpretation of § 2254. See Ahearn v. Jackson

Hosp. Corp., 351 F.3d 226, 235 (6th Cir. 2003). On top of that, § 2241 creates a broader set of

avenues for relief. It permits relief if the claimant shows any of the following: he or she (1) is in

the United States’ custody or “committed for trial before some court thereof,” (2) is in custody

for following a federal law or judicial order, (3) is in custody in violation of federal law, (4) is a

foreign national who claims his or her custody violates international law, or (5) the writ is

needed to bring the claimant to court to testify or for trial. 28 U.S.C. § 2241(c). By contrast,

§ 2254 permits relief only if the petitioner “is in custody in violation of” federal law. Id.

§ 2254(a). Nothing in Terrell shows that it granted relief on the grounds permitted by § 2254.

This conclusion, it is true, takes Bailey to the end of one road for relief. But it does not

foreclose another. Nothing prevents Bailey from using § 1983 to raise these or similar claims.

See, e.g., Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998); Nettles v. Grounds, 830

F.3d 922, 935–36 (9th Cir. 2016) (en banc). While we affirm the dismissal of Bailey’s petition,

we do so without prejudice to his filing a new claim under § 1983.

We affirm.

No. 18-3581 Bailey v. Wainwright Page 6

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DISSENT

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JANE B. STRANCH, Circuit Judge, dissenting. Because the majority misapplies binding

circuit precedent, I respectfully dissent.

The majority holds that relief pursuant to 28 U.S.C. § 2254 is unavailable to a state

prisoner who cannot show that “but for” an alleged constitutional violation, there “would” be a

change in custody status. Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011), says

otherwise. There, a capital habeas petitioner proceeding under § 2254 challenged a specific

lethal-injection protocol under the Eighth Amendment: we held that “[w]hereas it is true that

certain claims that can be raised in a federal habeas petition cannot be raised in a § 1983 action,

it does not necessarily follow that any claim that can be raised in a § 1983 action cannot be

raised in a habeas petition.” Id. (citations omitted). More critically, we explained that Adams’s

lethal-injection claim was cognizable in habeas because “if successful, [it] could render his death

sentence effectively invalid.” Id. (emphasis added). We did not require Adams to show that he

would incur a change in custody status should he prevail. Indeed, we rejected the imposition of

such a burden. Id. The relief that Adams requested would not have guaranteed a change to his

sentence; it would have made a change to his sentence more likely, which was sufficient to make

his claims cognizable in habeas.

Michael Bailey’s case involves just the kind of probabilistic change to custody that was at

issue in Adams. He was convicted in 1975 and became eligible for parole after 15 years in jail.

He applied for parole 8 times over the following 30 years and was denied each time. Bailey first

became aware in 2015 that his parole record contained an incorrect and inflammatory description

of his crime. He sought to correct his parole records to accurately reflect the testimony at trial,

which would have increased his chances of parole. Ohio authorities could deny Bailey parole

despite accurate records. But because relief would make a change in custody more likely, Bailey

has sufficiently claimed to be in custody in violation of federal law. § 2254(a). The majority’s

attempt to distinguish Adams misses the critical point that Adams’s collateral attack sought only

a probabilistic change in custody. Its citation in the same paragraph to Nelson v. Campbell, a

No. 18-3581 Bailey v. Wainwright Page 7

case about the breadth of § 1983, not § 2254, further reveals this error. 541 U.S. 637, 644

(2004). The majority invokes Nelson for the proposition that “a constitutional challenge seeking

to permanently enjoin the use of lethal injection may amount to a challenge to the fact of the

sentence itself.”1 Id. (emphasis added). But that is exactly my point. Here too, Bailey’s

challenge may amount to a challenge to the duration of his sentence.

In Terrell v. United States, moreover, we expressly rejected the proposition that habeas

and § 1983 are mutually exclusive remedies. 564 F.3d 442, 448-49 (6th Cir. 2009). Terrell

involved a challenge to parole procedures that, like Bailey’s claim, would not have guaranteed a

change in his sentence. Id. at 445-46. We reasoned: “[o]ur cases have held that [such

challenges] can both be brought under habeas and the equivalent civil action.” Id. at 448. The

majority attempts to distinguish Terrell on the grounds that Terrell was a federal prisoner

proceeding under § 2241, whereas Bailey is a state prisoner seeking relief through § 2254. The

majority declares, “our interpretation of § 2241 does not control our interpretation of § 2254.”

To support this proposition, it cites to Ahearn v. Jackson Hosp. Corp., 351 F.3d 226, 235 (6th

Cir. 2003), a case distinguishing the requirements for injunctive relief under the National Labor

Relations Act from those in § 706(f)(2) of Title VII of the Civil Rights Act of 1964. Ahearn

provides no foundation for the majority’s conclusion. Section 2241 and § 2254 are separate

statutes. But they are intertwined statutes. They provide parallel avenues for state and federal

prisoners to seek habeas relief, they share key language, and innumerable opinions of this court

are devoted to defining their precise relationship. See, e.g., Allen v. White, 185 F. App’x 487,

490 (6th Cir. 2006) (“Federal prisoners who wish to collaterally challenge the execution of their

sentences must petition for relief under § 2241. The same is not true of state prisoners who

proceed under § 2254, because § 2254 allows state prisoners to collaterally attack either the

imposition or the execution of their sentences.”). Our Terrell opinion establishes that in the

Sixth Circuit some claims can be cognizable both in habeas and § 1983. The majority’s citation

to the Ninth Circuit’s decision in Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) does nothing

to defeat the binding nature of our precedent.

1Challenges to the “fact of” and “duration of” a sentence both equally sound in habeas. Nelson v.

Campbell, 541 U.S. 637, 643 (2004).

No. 18-3581 Bailey v. Wainwright Page 8

Because the majority forecloses an avenue of relief that our binding precedent expressly

holds open, I respectfully dissent.