Crump v. Lafler

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0269p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

LUCIUS CRUMP,

-

Petitioner-Appellant,

-

-

No. 09-1073

v.

,

>

-

Respondent-Appellee. -

BLAINE C. LAFLER,

-

N

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 08-00820—Robert J. Jonker, District Judge.

Argued: April 28, 2011

Decided and Filed: September 20, 2011

Before: COLE and GIBBONS, Circuit Judges; CLELAND, District Judge.*

_________________

COUNSEL

ARGUED: Jacob R. Loshin, WINSTON & STRAWN LLP, Washington, D.C., for

Appellant. Andrea M. Christensen, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Geoffrey P. Eaton,

WINSTON & STRAWN LLP, Washington, D.C., for Appellant. Andrea M.

Christensen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,

Michigan, for Appellee.

CLELAND, D. J., delivered the opinion of the court, in which GIBBONS, J.,

joined. COLE, J. (pp. 18–21), delivered a separate dissenting opinion.

*

The Honorable Robert H. Cleland, United States District Judge for the Eastern District of

Michigan, sitting by designation.

1

No. 09-1073 Crump v. Lafler Page 2

_________________

OPINION

_________________

CLELAND, District Judge. Petitioner-Appellant Lucius Crump asks us to find

that the Michigan law governing parole has created a liberty interest cognizable under

the Fourteenth Amendment and enforceable in a federal court through a 28 U.S.C § 2254

petition for a writ of habeas corpus. Although Michigan may categorize a parole-eligible

prisoner as having a “high probability” of release, we find that an actual release

determination remains uncertain and subject to a broad grant of discretion to the Parole

Board to decide otherwise. A prisoner in the high-probability class, therefore, has no

enforceable claim of entitlement to release. The district court’s dismissal of Appellant’s

petition will be AFFIRMED.

I. BACKGROUND

In 2001, pursuant to his plea of guilty, Petitioner was convicted of third-degree

criminal sexual conduct (“CSC”) and sentenced to a term of imprisonment from 3 to 22

½ years. Following his arrest on the CSC charge, and while on bond for that charge, he

was arrested for possession with intent to deliver cocaine. He was convicted of that

offense as well, and sentenced to a term of 7 to 20 years imprisonment consecutive to

the CSC sentence.

Petitioner became eligible for parole in 2008. The Michigan Parole Board

assessed his parole using the Department of Corrections Parole Guidelines. Using the

associated guidelines scoresheet, the Board assigned Petitioner a score of +3, which

gives him a status of “high probability of parole.” Nonetheless, on July 15, 2008, after

a Parole Board interview, the Board denied Petitioner’s application for parole for a

period of 18 months. Notice of the Board’s decision was mailed to Petitioner on July 21,

2008. In the section of the notice entitled “Substantial and Compelling Reasons for

Guideline Departure,” the Board wrote:

No. 09-1073 Crump v. Lafler Page 3

P is a repeat sex offender. P needs SOT [sex offender therapy] to reduce

his risk of recidivism. P took SOT [in a previous incarceration], but that

did not help. At PBI [Parole Board Interview], P had no insight,

empathy, or remorse. He has not reduced his risk.

(Pet., Dist. Ct. Docket 1, Ex. A at 1.) Additional reasons for the Parole Board’s decision

are found elsewhere in the notice, in the section entitled “Reasons for the Parole Board

Action.” (Id. at 1-2.) The notice also provided a list of “Recommendations for

Corrective Action Which May Facilitate Release.” (Id. at 2.)

Petitioner contends that the Board’s decision was based “almost entirely on a

seven-year-old psychological evaluation that was conducted just months after Mr.

Crump’s incarceration and that therefore did not, and could not, take into account Mr.

Crump’s current ‘risk of recidivism.’” (Pet’r’s Opening Br. at 7-8.) Petitioner also

argues that the assertion that he needed sex offender therapy to reduce his risk of

recidivism is not even consistent with the 2001 psychological evaluation because the

evaluation stated only that therapy “may” be “of some benefit.” (Id. at 8.) Petitioner

further contends that it was inconsistent for the Board to stress the importance of sex

offender therapy without also recommending that therapy in the list of

“Recommendations for Corrective Action.”1 (Id.)

On August 28, 2008, Petitioner filed a pro se “Motion to Show Cause” in the

United States District Court for the Western District of Michigan, which the court

interpreted as a petition for habeas corpus under 28 U.S.C. § 2254. The petition claimed

that the Board’s decision to deny him parole was not supported by the record evidence

and thus constituted a deprivation of liberty without due process of law.

The petition was referred to Magistrate Judge Hugh Brenneman, who issued a

Report and Recommendation on September 8, 2008, recommending a summary

1

Although the validity of the Board’s reasoning is not an issue directly before us, most, if not all,

of Petitioner’s stated concerns are not factually accurate. For example, Petitioner argues that the Board’s

decision was “almost entirely” based on the 2001 evaluation, but the notice lists a variety of bases for its

opinion, most notably that at the Parole Board Interview, Petitioner demonstrated a lack of insight,

empathy, or remorse. Moreover, there is nothing inconsistent about stating that Petitioner “needs” sex

offender therapy when the evaluation stated that it “may” be helpful. Finally, contrary to Petitioner’s

assertion, the notice did list in its “Recommendations” that Petitioner should “obtain screening by

psychological staff to determine the appropriateness of group therapy to reduce the risk to society.”

No. 09-1073 Crump v. Lafler Page 4

dismissal of the petition for failing to raise a meritorious federal claim.2 Specifically,

the magistrate judge held that in the absence of a state-created entitlement, Petitioner

lacked a cognizable liberty interest in parole, and he therefore failed to state a claim.

Petitioner filed objections, which were considered by United States District

Judge Robert J. Jonker on December 22, 2008. Over Petitioner’s objections, the district

court adopted the recommendation, dismissed the habeas petition, and denied a

certificate of appealability. Petitioner timely appealed, and this court granted a

certificate of appealability.

II. ANALYSIS

A. Standard of Review

In considering a district court’s denial of a petition for a writ of habeas corpus

under 28 U.S.C. § 2254, we review all legal conclusions de novo. Tolliver v. Sheets, 594

F.3d 900, 915 (6th Cir. 2010) (citing Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.

2004)). Generally, the district court cannot grant a petition under § 2254 “with respect

to any claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Here, however,

Petitioner’s claim has not been adjudicated in state court, and we thus apply de novo

review.

2

The rules governing § 2254 cases provide that the court shall promptly examine a petition to

determine “if it plainly appears from the face of the petition and any exhibits annexed to it that the

petitioner is not entitled to relief.” Rules Governing § 2254, Rule 4. If the court determines that the

petitioner is not entitled to relief, the court shall summarily dismiss the petition. McFarland v. Scott, 512

U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss summarily any habeas petition that

appears legally insufficient on its face . . . .”).

No. 09-1073 Crump v. Lafler Page 5

B. Discussion

The Fourteenth Amendment to the United States Constitution provides that a

state may not “deprive any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1. The right to procedural due process “requires that

when a State seeks to terminate [a protected] interest . . . it must afford ‘notice and

opportunity for hearing appropriate to the nature of the case’ before the termination

becomes effective.” Bd. of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972) (quoting Bell

v. Burson, 402 U.S. 535, 542 (1971) (alteration in original)). “Not every injury or

substantial deprivation inflicted upon a person by the state ‘is sufficient to invoke the

procedural protections of the Due Process Clause.’” Mayes v. Trammell, 751 F.2d 175,

177 (6th Cir. 1984), superseded by rule (quoting Meachum v. Fano, 427 U.S. 215, 224

(1976)). In order to have a protected interest, Petitioner “clearly must have more than

an abstract need or desire for it. He must have more than a unilateral expectation of it.

He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577.

This, precisely, is Petitioner’s claim.

“There is no constitutional or inherent right of a convicted person to be

conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates

of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). “A state may . . . establish a

parole system, but it has no duty to do so.” Id. “That the state holds out the possibility

of parole provides no more than a mere hope that the benefit will be obtained.” Id. at 11

(citing Roth, 408 U.S. at 577). Such a “general interest . . . is no more substantial than

the inmate’s hope that he will not be transferred to another prison, a hope which is not

protected by due process.” Id. (citing Meachum, 427 U.S. at 225). Rather, to obtain a

constitutionally protected liberty interest in parole, Petitioner must have a “legitimate

claim of entitlement to” parole, a claim that can be created only by the operation of state

law. Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235

(6th Cir. 1991) (quoting Greenholtz, 442 U.S. at 7). “The federal constitution protects

such claims, but does not create them.” Id.

No. 09-1073 Crump v. Lafler Page 6

In Greenholtz, the Supreme Court reviewed Nebraska’s parole statutory scheme

and found that “the expectancy of release provided in this statute is entitled to some

measure of constitutional protection.” 442 U.S. at 12. In so holding, the Court

“emphasize[d] that this statute has unique structure and language and thus whether any

other state statute provides a protectible entitlement must be decided on a case-by-case

basis.” Id. The “unique structure” to which the court referred is formulated as “shall

release . . . unless . . . [specific conditions are met].” Specifically, the Nebraska statute

stated:

Whenever the Board of Parole considers the release of a committed

offender who is eligible for release on parole, it shall order his release

unless it is of the opinion that his release should be deferred because:

(a) There is a substantial risk that he will not conform to the conditions

of parole;

(b) His release would depreciate the seriousness of his crime or promote

disrespect for law;

(c) His release would have a substantially adverse effect on institutional

discipline; or

(d) His continued correctional treatment, medical care, or vocational or

other training in the facility will substantially enhance his capacity to

lead a law-abiding life when released at a later date.

Id. at 11 (quoting Neb. Rev. Stat. § 83-1, 114(1) (1976) (emphasis added)). The statute

also provided “a list of 14 explicit factors and one catchall factor that the Board [wa]s

obligated to consider in reaching a decision.” Id. at 11 n.5 (citing Neb. Rev. Stat.

§§ 83-1,114(2)(a)-(n) (1976)). In a later decision commenting on Greenholtz, the Court

explained that “[i]n deciding that this statute created a constitutionally protected liberty

interest, the Court found significant its mandatory language—the use of the word

‘shall’—and the presumption created—that parole release must be granted unless one

of four designated justifications for deferral is found.” Bd. of Pardons v. Allen, 482 U.S.

369, 374 (1987).

No. 09-1073 Crump v. Lafler Page 7

Likewise, in Allen, the Supreme Court considered Montana’s parole statute, and

found that it, too, created a liberty interest in parole. 482 U.S. 369. The Montana statute

used the same kind of mandatory language, but the formulation was reversed. Instead

of saying the parole board shall release . . . unless certain (negative) factors were present,

the Montana statute provided that the parole board shall release . . . if certain (positive)

factors were present.3 Specifically, the statute provided,

Prisoners eligible for parole. (1) Subject to the following restrictions, the

board shall release on parole . . . any person confined in the Montana

state prison or the women’s correction center . . . when in its opinion

there is reasonable probability that the prisoner can be released without

detriment to the prisoner or to the community[.]

...

(2) A parole shall be ordered only for the best interests of society and not

as an award of clemency or a reduction of sentence or pardon. A

prisoner shall be placed on parole only when the board believes that he

is able and willing to fulfill the obligations of a law-abiding citizen.

Id. at 376-77 (citing Mont. Code Ann. § 46-23-201 (1985)) (emphasis in original). The

Court explained:

Significantly, the Montana statute, like the Nebraska statute, uses

mandatory language (“shall”) to “creat[e] a presumption that parole

release will be granted” when the designated findings are made.

Greenholtz, 442 U.S., at 12, 99 S. Ct., at 2106. See Statement of

Assistant Attorney General of Montana, Tr. of Oral Arg. 6 (“under our

statute once the Board of Pardons determines that the facts underlying a

particular parole application are such that the release can occur

consistently with the three criteria the statute specifies, then under our

law the Board is required to order release”). We reject the argument that

a statute that mandates release “unless” certain findings are made is

different from a statute that mandates release “if,” “when,” or “subject

to” such findings being made. Any such statute “creates a presumption

3

This court commented on the language structure of the Nebraska statute in Mayes, issued

between Greenholtz and Allen:

One of the “unique” aspects of the Nebraska statute may be found in its direction that

the parole board “shall” order release “unless” certain deferral criteria were present.

That the “shall/unless” formulation is important is supported by numerous cases.

Furthermore, the few statutes that have been held to establish a liberty entitlement are

quite similar to the Nebraska scheme reviewed in Greenholtz.

Mayes, 751 F.2d at 177 (internal citations omitted).

No. 09-1073 Crump v. Lafler Page 8

that parole release will be granted.” Greenholtz, supra, at 12, 99 S. Ct.,

at 2106.

Id. at 377-78.

Accordingly, in determining whether Michigan’s parole system creates a liberty

interest, we must determine whether Petitioner had “a legitimate claim of entitlement to”

parole, rather than “an abstract need or desire for it.” Greenholtz, 442 U.S. at 7 (quoting

Roth, 408 U.S. at 577). The question cannot be answered simply by quantifying the

discretion vested with Michigan’s Parole Board. Even the statutes at issue in Greenholtz

and Allen vested “very broad” discretion in the parole boards. Greenholtz, 442 U.S. at

13; Allen, 482 U.S. at 381. As explained in Allen, referring to Greenholtz:

In essence, the Court made a distinction between two entirely distinct

uses of the term discretion. In one sense of the word, an official has

discretion when he or she “is simply not bound by standards set by the

authority in question.” R. Dworkin, Taking Rights Seriously 32 (1977).

In this sense, officials who have been told to parole whomever they wish

have discretion. In Greenholtz, the Court determined that a scheme

awarding officials this type of discretion does not create a liberty interest

in parole release. But the term discretion may instead signify that “an

official must use judgment in applying the standards set him [or her] by

authority”; in other words, an official has discretion when the standards

set by a statutory or regulatory scheme “cannot be applied

mechanically.” Dworkin, supra, at 31, 32; see also id., at 69 (“[W]e say

that a man has discretion if his duty is defined by standards that

reasonable [people] can interpret in different ways”). The Court

determined in Greenholtz that the presence of official discretion in this

sense is not incompatible with the existence of a liberty interest in parole

release when release is required after the Board determines (in its broad

discretion) that the necessary prerequisites exist.

Allen, 482 U.S. at 375-76 (emphasis in original). Rather, Allen and Greenholtz teach

that the salient factor is whether the statute contains mandatory language that creates a

presumption of release when the designated findings are made. Id. at 377 (quoting

Greenholtz, 442 U.S. at 12). The mandatory language may be found in a statute, a

regulation, or even “policy statements . . . or other official promulgations” by parole or

No. 09-1073 Crump v. Lafler Page 9

prison officials. See Beard v. Livesay, 798 F.2d 874, 877 (6th Cir. 1986) (citing Walker

v. Hughes, 558 F.2d 1247, 1255 (6th Cir. 1977)).

Respondent argues that the Sixth Circuit has already held, in Sweeton v. Brown,

27 F.3d 1162 (6th Cir. 1994) (en banc), that Michigan’s parole system does not create

a liberty interest in parole. In Sweeton, we reviewed the district court’s denial of a

motion to “vacate, modify or terminate a consent decree entered in 1981 governing

parole procedures for state prisoners in Michigan.” Id. at 1162. We said:

The Michigan procedural limitations do not detract from the broad

powers of the Michigan authorities to deny parole. So long as the parole

discretion is broad, as in Michigan, “the State has not created a

constitutionally protected liberty interest” by enacting procedural rules.

Olim, 461 U.S. at 249, 103 S. Ct. at 1747. The parole authorities of the

State of Michigan may have been required to follow their own procedural

statutes and regulations on parole as amplified in the consent decree as

a matter of state law, but there is not now any viable legal theory by

which Michigan state authorities are required to follow such procedural

rules as a matter of federal due process.

Id. at 1164-65 (emphasis in original).4 Since Sweeton, as Petitioner acknowledges,

courts have routinely held that Michigan has not created a liberty interest in parole.

Sweeton’s apparently continued vitality was the basis for the Magistrate Judge’s

recommendation, ultimately accepted, that the district court dismiss Petitioner’s § 2254

petition:

In Sweeton v. Brown, 27 F.3d 1162, 1164-165 (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. Subsequent to its 1994 decision, the Sixth Circuit has

4

In Sweeton, we commented:

A due respect for the doctrine of federalism, the structural principle by which we

subdivide governmental power, discourages constitutionalizing state regulatory

procedures. Otherwise federal courts would take over from state administrators and

courts the interpretation and enforcement of a whole host of local procedural rules

governing such local matters as zoning, probate, licensing, school discipline or public

health, and states would be discouraged from laying down reasonable and useful rules

to govern the conduct of their own affairs for fear that those rules would subject them

to jurisdiction and penalties in federal courts.

Sweeton, 27 F.3d at 1165.

No. 09-1073 Crump v. Lafler Page 10

recognized the continuing validity of Sweeton and has continued to find

that Michigan’s parole scheme creates no liberty interest in being

released on parole. See Ward v Stegall, 93 F. App’x 805, 806 (6th Cir.

2004); Martin v. Ohio Adult Parole Auth., 83 F. App’x 114, 155 (6th Cir.

2003); Bullock v. McGinnis, 5 F. App’x 340, 342 (6th Cir. 2001);

Turnboe v. Stegall, No. 00-1182, 2000 WL 1679478, at *1 (6th Cir. Nov.

1, 2000); Hawkins v. Abramajtys, No. 99-1995, 2000 WL 1434695, at *2

(6th Cir. Sept. 19, 2000); Irvin v. Mich. Parole Bd., No. 99-1817, 2000

WL 800029, at *2 (6th Cir. June 14, 2000); Clifton v. Gach, No.

98-2239, 1999 WL 1253069, at *1 (6th Cir. Dec. 17, 1999).

Also, in unpublished decisions, the Sixth Circuit has held that particular

parts of Michigan’s statutory parole scheme do not create a liberty

interest in parole. See Fifer v. Mich. Dep’t of Corr., No. 96-2322, 1997

WL 681518, at *1 (6th Cir. Oct. 30, 1997); Moran v. McGinnis, No.

95-1330, 1996 WL 304344, at *2 (6th Cir. June 5, 1996); Leaphart v.

Gach, No. 95-1639, 1995 WL 734480, at *2 (6th Cir. Dec. 11, 1995);

Vertin v. Gabry, No. 94-2267, 1995 WL 613692, at *1 (6th Cir. Oct. 18,

1995); Neff v. Johnson, No. 92-1818, 1993 WL 11880, at *1 (6th Cir.

Jan. 21, 1993); Janiskee v. Mich. Dep’t of Corr., No. 91-1103, 1991 WL

76181, at *1 (6th Cir. May 9, 1991); Haynes v. Hudson, No. 89-2006,

1990 WL 41025, at *1 (6th Cir. Apr. 10, 1990). In addition, 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).

(Report and Recommendation, Dist. Ct. Docket 2, at 3-4.)

While this host of decisions favorably citing Sweeton may appear dispositive,

Petitioner’s argument to the contrary is substantial. After Sweeton was issued, the

Michigan parole system was amended to limit, in some degree, the Parole Board’s

discretion. See In re Parole of Johnson, 556 N.W.2d 899, 900 (Mich. Ct. App. 1996)

(“While the Parole Board continues to enjoy broad discretion in carrying out its

legislatively prescribed function, the Legislature’s recent enactments have circumscribed

this discretion to some extent.”) (citations omitted). In the intervening fifteen years

since these statutory and regulatory amendments took effect, no published Sixth Circuit

case has addressed whether Sweeton’s ruling survives the amendments: whether, in other

No. 09-1073 Crump v. Lafler Page 11

words, the particular provision cited by Petitioner creates a legitimate expectation of

parole and thus a liberty interest.5

Petitioner focuses not on the parole statute generally, but on one particular

provision that classifies certain prisoners as having either a “low” or “high probability

of parole.” See Mich. Comp. Laws § 791.233e(6) (2011). Once so classified, the statute

provides that the Board shall depart from the classification only for “substantial and

compelling reasons.” Id. The starting point of statutory analysis, of course, is the text

of the statute itself. See McNeill v. United States, ___ U.S. ___, 131 S.Ct. 2218, 2221

(2011) (“As in all statutory construction cases, we begin with ‘the language itself [and]

the specific context in which that language is used.’”(quoting Robinson v. Shell Oil Co.,

519 U.S. 337, 341 (1997) (alteration in original))). The statute reposes in the Parole

Board trust and broad—although in some ways circumscribed—discretion in its

determinations. See Mich. Comp. Laws § 791.235 (2011) (“The release of a prisoner on

parole shall be granted solely upon the initiative of the [P]arole [B]oard.”). For example,

the statute provides that “[t]he department shall develop parole guidelines that are

consistent with section 33(1)(a) and that shall govern the exercise of the [P]arole

[B]oard’s discretion pursuant to sections 34 and 35 as to the release of prisoners on

parole under this act.” Mich. Comp. Laws § 791.233e(1) (2011). Parole guidelines

attach different probability scores to potential parolees. See Mich. Admin. Code r.

791.7715-7716 (2011) (prescribing the factors to take into consideration in generating

a “score” which in turn assigns each parolee a “probability of parole”). “The purpose

of the parole guidelines shall be to assist the [P]arole [B]oard in making release

decisions that enhance the public safety.” Mich. Comp. Laws § 791.233e(1). The statute

further provides:

5

As will be discussed below, an unpublished case does address the issue, albeit briefly. Further,

a recent published case, citing Sweeton, states that a district court “properly dismissed on the ground that

plaintiffs lack a constitutionally protected liberty interest in parole.” Foster v. Booker, 595 F.3d 353, 368

(6th Cir. 2010). In Foster, however, the issue was not directly before the court because it had not been

raised on appeal. See id. (“The complaint does not state a claim under any of these theories. First,

considered as a claim under general procedural due process principles with regard to the denial of parole,

the district court properly dismissed on the ground that plaintiffs lack a constitutionally protected liberty

interest in parole. Plaintiffs do not contest this, but rather argue that this is not the nature of their claim.”

(citations omitted)).

No. 09-1073 Crump v. Lafler Page 12

The department shall promulgate rules pursuant to the administrative

procedures . . . which shall prescribe the parole guidelines. . . . Until the

rules take effect, the director shall require that the parole guidelines be

considered by the [P]arole [B]oard in making release decisions. After the

rules take effect, the director shall require that the [P]arole [B]oard

follow the parole guidelines.

Mich. Comp. Laws § 791.233e(5) (2011). The specific section applicable to Petitioner

states:

(6) The [P]arole [B]oard may depart from the parole guideline by

denying parole to a prisoner who has a high probability of parole as

determined under the parole guidelines or by granting parole to a

prisoner who has a low probability of parole as determined under the

parole guidelines. A departure under this subsection shall be for

substantial and compelling reasons stated in writing. The [P]arole

[B]oard shall not use a prisoner’s gender, race, ethnicity, alienage,

national origin, or religion to depart from the recommended parole

guidelines.

Mich Comp. Laws § 791.233e(6) (2011) (emphasis added); see also Mich. Admin.

Code r. 791.7715(5). Petitioner relies on this to argue that the language of the Michigan

parole statute is akin to that in Allen and Greenholtz, in that parole must be granted to

a classification of prisoners unless “substantial and compelling reasons” exist.

Petitioner also cites Mayes v. Trammell, in which we found that Tennessee’s

former parole scheme created a liberty interest. 751 F.2d 175 (6th Cir. 1984). There the

parole rules provided that the “Board may deny the resident’s release on parole if, by

majority vote, it determines” one of four enumerated factors existed. Id. at 178 (citing

Tenn. Bd. of Parole Rule 1100-1-1-.06(3)). Unlike Michigan’s parole system, however,

the Tennessee system provided that “[t]he Board operates under the presumption that

each resident who is eligible for parole is a worthy candidate and thus the Board

presumes that he will be released on parole when he is first eligible.” Id. (citing Tenn.

Bd. of Parole Rule 1100-1-1-.06(1)). Thus, although the Tennessee rule used “may”

instead of “shall,” it nonetheless incorporated an explicit presumption which gave rise

to a enforceable expectation of release, and we specifically relied on that presumption

No. 09-1073 Crump v. Lafler Page 13

when finding a liberty interest. Id. at 178. Michigan’s statue embraces no such

presumption.

A most striking difference between the Michigan parole system and those

discussed in Allen, Greenholtz, and Mayes is that the Michigan parole statute provides

an expectation of release to only a certain classification of prisoners. That classification,

in turn, is determined by a computation of the Parole Board using a variety of factors.

See Mich. Admin. Code. r. 791.7716(3) (2011) (“A parole guideline score shall be based

on a combination of the length of time the prisoner has been incarcerated for the offense

for which parole is being considered and each of the following factors [listing numerous

factors].”). Therefore, only certain prisoners, classified after the Parole Board has

performed its calculation of the guideline score, could potentially have a liberty interest

in parole. The classification is not discernable from a casual reading of the parole

statute.6 Petitioner provides no case in which a liberty interest inheres in a subset of

prisoners who are not readily identifiable, as opposed to prisoners generally as in Mayes.

A second difference between the Michigan statute and the statutes in Allen and

Greenholtz is the degree of specificity provided in the statute for the predicate

exceptions. Accepting Petitioner’s argument that the Board can depart from the “high

probability of parole” only for substantial and compelling reasons, such a broad, and

undefined,7 expression of the factual predicate necessarily vests greater discretion in the

6

The rules for calculating the score list seven broad considerations with numerous subsections

included under most of the broad considerations. See Mich. Admin. Code. r. 791.7716(3). Most of the

considerations seem objective (e.g., under the broad category of “nature of offenses,” the Board is directed

to consider such factors as the use of a weapon or threat of a weapon in the underlying offense, any

physical or psychological injury to a victim, and property damage of more than $5,000.00). See Mich.

Admin. Code. r. 791.7716(3)(a)(i-iii) (2011). But other factors appear more subjective (e.g., provision

requiring consideration of “the prisoner's performance in institution programs and community programs

during the period between the date of initial confinement on the sentence for which parole is available and

parole eligibility, including, but not limited to, participation in work, school, and therapeutic programs,”

and provision requiring consideration of the prisoner’s mental health, including “[w]hether subsequent

behavior or therapy suggests that improvement has occurred”). See Mich. Admin. Code. r. 791.7716(3)(f),

(g)(iv) (2011).

7

Citing People v. Babcock, 666 N.W.2d 231, 237 (Mich. 2003), Petitioner asserts that, under

Michigan law, the phrase “substantial and compelling reason” has “acquired a peculiar and appropriate

meaning.” In Babcock, the Michigan Supreme Court, reviewing sentencing guidelines, stated:

The phrase “substantial and compelling reason” has, in our judgment, acquired a

peculiar and appropriate meaning in the law and, thus, it must be construed according

to such meaning. That is, a “substantial and compelling reason” must be construed to

No. 09-1073 Crump v. Lafler Page 14

Board than those in Allen and Greenholtz. In Allen, the Court discussed the type of

discretion exercised in both the Montana and Nebraska statutes, and concluded that,

under the relevant “shall . . . when/unless” language structures, both statutes required

determining whether similar factual predicates were met:

Moreover, the “substantive predicates,” see Hewitt v. Helms, 459 U.S.

460, 472, 103 S. Ct. 864, 871, 74 L.Ed.2d 675 (1983), of parole release

in Montana are similar to those in Nebraska. In both States, the Parole

Board must assess the impact of release on both the prisoner and the

community. A central concern of each is the prisoner’s ability “to lead

a law-abiding life.” Neb. Rev. Stat. § 83-1,114(1)(d) (1981); see

§ 83-1,114(1)(a) (prisoner may not be released if there is “a substantial

risk that he will not conform to the conditions of parole”); Mont. Code

Ann. § 46-23-201(2) (1985) (prisoner must be released when, inter alia,

it will cause no detriment to him or her and must not be released unless

the prisoner is “able and willing to fulfill the obligations of a law-abiding

citizen”). An interrelated concern of both statutes is whether the release

can be achieved without “detriment to . . . the community.” Mont. Code

Ann. § 46-23-201(1) (1985); see § 46-23-201(2) (prisoner must be

released only “for the best interests of society”); see Neb. Rev. Stat.

§ 83-1, 114(1)(b) (1981) (prisoner must not be released if it “would

depreciate the seriousness of his crime or promote disrespect for law”).

The discretion left with the parole boards is equivalent in Montana and

Nebraska.

Allen, 482 U.S. at 379-80. In Michigan, the discretion left to the Parole Board is

markedly greater, as the predicate consideration (“substantial and compelling reasons

stated in writing”) is far less particularized than the significant considerations in Allen

and Greenholtz, comprising a list of specifically enumerated factors. Michigan’s law

provides that so long as the reasons meet the standards (and avoid the statutory

proscriptions) they need not be anything in particular to suffice.

mean an “objective and verifiable” reason that “‘keenly’ or ‘irresistibly’ grabs our

attention”; is “of ‘considerable worth’ in deciding the length of a sentence”; and “exists

only in exceptional cases.”

Id. (citing People v. Fields, 528 N.W.2d 176 (1995)). Even if it is true that “substantial and compelling

reasons” in the parole scheme means the same as in the sentencing scheme, the phrase, nonetheless, does

not provide further specificity with respect to the types of reasons on which the Parole Board may rely.

In Allen and Greenholtz, the statutes provided specific, enumerated factors, while in Michigan what

constitutes a “substantial and compelling reason” is left to the broad discretion of the Parole Board.

No. 09-1073 Crump v. Lafler Page 15

Finally, and obviously, 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. As defined by the Oxford English

Dictionary, probability means “[t]he property or fact of being probable, esp. of being

uncertain but more likely than not.” Oxford English Dictionary (3d ed. 2007). Everyday

parlance is quite consistent with this definition: “probability” lies at some distance from

certainty. Neither can a probability, incorporating as it does that degree of uncertainty,

rise to the significance of a mandated result, or a presumption. Even if a grant of parole

were viewed as “more likely than not” to occur, the outcome nonetheless remains

“uncertain,” and therefore “more likely than not” cannot create a presumption’s

“entitlement” to that result; there can be no legitimate expectation or entitlement

properly founded on the basis of an event the occurrence of which is merely “likely.”

See Bd. of Regents, 408 U.S. at 577. A gambler who managed to get even odds betting

on the USSR hockey team against the US in the 1980 Winter Olympics was far “more

likely than not” going to win. He was probably planning how he would spend his loot

even before the first puck dropped. But uncertainty intervened, the US happily

prevailed, and the gambler never saw a dime.

We find that Michigan’s 1996 amendments did not affect the holding in Sweeton.

There is no “legitimate claim of entitlement to” parole, Greenholtz, 442 U.S. at 7 (citing

Roth, 408 U.S. at 577), and thus no liberty interest in parole.

This finding is also consistent with two unpublished Sixth Circuit decisions

which have addressed the issue, although briefly. In Caldwell v. McNutt, 158 F. App’x

739 (6th Cir. 2006), the panel found that the amendments to the parole procedures did

not impact Sweeton’s holding:

Michigan law, which imbues the Parole Board with broad discretion,

does not create a liberty interest in the granting of parole. Sweeton v.

Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en banc). (Though

Michigan’s statutes governing parole procedures have been amended in

minor ways since Sweeton, the legislature has made no alterations that

would change the result in that case. See Mich. Comp. Laws

§§ 791.234-.235.) Therefore, even if the Parole Board relied on

No. 09-1073 Crump v. Lafler Page 16

inaccurate information to deny Caldwell parole, it did not violate any

liberty interest protected by the United States Constitution.

Id. at 740-41. A second panel examined the language to which Petitioner cites and held:

The district court properly concluded that the Michigan parole scheme

does not create a protected liberty interest. In support of their claim, the

plaintiffs argued that the current Michigan parole scheme creates a

protected liberty interest in parole because it places severe restrictions on

the Board’s discretion to grant or deny parole, and because it requires the

Board to provide “substantial and compelling reasons” for departing from

the parole guidelines. Prisoners have “no constitutional or inherent right”

to parole or a parole hearing. Greenholtz v. Inmates of Neb. Penal &

Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 60 L.Ed.2d 668 (1979).

Michigan law provides that “[t]he release of a prisoner on parole shall be

granted solely upon the initiative of the parole board.” Mich. Comp.

Laws Ann. § 791.2359(1)(a) (West Group 2002). Contrary to the

plaintiffs’ argument, the ultimate authority to grant parole still lies within

the discretion of the Board. Hence, the Michigan parole scheme does not

create a protected liberty interest in release on parole.

Carnes v. Engler, 76 F. App’x 79, 80 (6th Cir. 2003). Unpublished decisions in the

Sixth Circuit are, of course, not binding precedent on subsequent panels, see Sheets v.

Moore, 97 F.3d 164, 167 (6th Cir. 1996) (Stating that unpublished opinions “carry no

precedential weight . . . [and] have no binding effect on anyone other than the parties to

the action.”), but their reasoning may be “instructive” or helpful. See Combs v. Int’l Ins.

Co. 354 F.3d 568, 593 (6th Cir. 2004) (“Although Willits [v. Peabody Coal Co., 188

F.3d 510, 1999 WL 701916 (6th Cir. Sept. 1, 1999)] is an unpublished opinion, its

reasoning is instructive.”); Boyd v. Yukins, 99 F. App’x 699, 703 (6th Cir. 2004) (“Our

unpublished case of Mix v. Robinson, 64 F. App’x 952, 957-58 (6th Cir. 2003), is

instructive.”). The holdings of Caldwell and Carnes lend further support to our finding

that Michigan still has not created a liberty interest in parole.

Austrian philosopher Ivan Illich observed, “we must rediscover the distinction

between hope and expectation.” Ivan Illich, Deschooling Society 105 (1971). The

maintenance of just this distinction is near-bedrock of Fourteenth Amendment due

process jurisprudence. Liberty interests do not arise casually from vague or anticipated

No. 09-1073 Crump v. Lafler Page 17

hopes. They arise instead from legitimate claims of entitlement. Roth, 408 U.S. at 577.

A fair reading of Michigan’s parole system reveals that it extends the possibility—even

to the extent of being probable—that parole status will be awarded. “That the state holds

out the possibility of parole provides no more than a mere hope that the benefit will be

obtained.” Greenholtz, 442 U.S. at 11 (citing Roth, 408 U.S. at 577). Though he has

identified a basis for his hope of parole, Petitioner has failed to identify a protectable

liberty interest to which he is entitled under the Fourteenth Amendment.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the dismissal of the petition for habeas

corpus.

No. 09-1073 Crump v. Lafler Page 18

_________________

DISSENT

_________________

COLE, Circuit Judge, dissenting. The majority claims that Michigan’s parole

system does not create a liberty interest because “an actual release determination remains

uncertain and subject to a broad grant of discretion.” Slip Op. at 2. Neither of these

considerations changes the fact that, under controlling Supreme Court precedent, see Bd.

of Pardons v. Allen, 482 U.S. 369 (1987); Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1 (1979), Michigan’s parole system “creates a presumption that

parole release will be granted,” Greenholtz, 442 U.S. at 12, and thus establishes a liberty

interest, for prisoners classified with a “high probability of parole.” I would therefore

REVERSE the district court’s judgment.

As an initial matter, I agree with the majority that our only published decision

on this issue, Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994) (en banc), addressed a

different Michigan statutory parole system, which vested more discretion in the parole

board. See In re Parole of Johnson, 556 N.W.2d 899, 900 (Mich. Ct. App. 1996).

Sweeton thus does not bind us, and its reasoning fails to survive scrutiny in light of

Michigan’s current system.

As the majority notes, “in all statutory construction cases, we begin with the

language itself [and] the specific context in which that language is used.” McNeill v.

United States, --- U.S. ----, 131 S. Ct. 2218, 2221 (2011) (internal quotation marks

omitted). This analysis focuses on “the ordinary meaning of the term.” Ransom v. FIA

Card Servs., --- U.S. ----, 131 S. Ct. 716, 724 (2011). The relevant Michigan statutory

language is: “The parole board may depart from the parole guideline by denying parole

to a prisoner who has a high probability of parole as determined under the parole

guidelines . . . . A departure under this subsection shall be for substantial and

compelling reasons stated in writing.” Mich. Comp. Laws § 791.233e(6) (emphasis

added). The parole guidelines standards “shall govern the exercise of the parole board’s

discretion.” Id. § 791.233e(1).

No. 09-1073 Crump v. Lafler Page 19

The plain interpretation of this language is that inmates with a “high probability

of parole” are presumed to receive parole. If the Michigan parole board wants to deny

these individuals parole, it has the discretion to do so, but only “for substantial and

compelling reasons stated in writing.”1 Id. § 791.233e(6). Michigan therefore “creates

a presumption that parole release will be granted” to inmates with a “high probability of

parole,” so it creates a liberty interest for these individuals. See Greenholtz, 442 U.S.

at 12.

After quoting the relevant Michigan statutory language, however, the majority

never conducts an assessment of the statute’s ordinary meaning—an assessment that

compels finding a liberty interest present here. Instead, the majority notes that several

factors go into the determination of who receives the “high probability of parole”

designation, points out that only a sub-section of parolees receive this designation, and

claims that the “substantial and compelling” factual predicate undermines the finding of

a liberty interest. Lastly, the majority makes much ado of the difference between a

“probability” and a “presumption.” Each of the arrows in the majority’s quiver misses

the mark, and all of them fail to strike at the heart of what the majority acknowledges is

the most important element of statutory interpretation: the language of the statute itself.

First, the majority contends that a prisoner’s classification depends on “a variety

of factors,” “[m]ost of [which] seem objective . . . [b]ut other[s of which] appear more

subjective.” Slip Op. at 13 & n.6. The majority also protests that a prisoner’s

“classification is not discernable from a casual reading of the parole statute.” Id. at 13.

But the factors relevant to the parole-guidelines classification are no more discretionary

(or “subjective”) than those relevant to parole that the Supreme Court reviewed in

Greenholtz. In that case, the Court noted that “the [parole release] decision differs from

the traditional mold of judicial decisionmaking in that the choice involves a synthesis

1

Our precedent supports this reading. In Mayes v. Trammell, we explained that “regulations[’]

use [of] the word ‘may’ . . . is not significant . . . [because] stat[ing] the rule in the negative and thus the

use of the word ‘may,’ as opposed to ‘shall,’ creates even more of an expectation of release.” 751 F.2d

175, 178 (6th Cir. 1984) (emphasis in original) (footnote omitted), superseded by statute as noted by Wells

v. Tenn. Bd. of Paroles, 909 S.W.2d 826, 828 (Tenn. Ct. App. 1995). Also, contrary to the majority’s

attempt to distinguish Mayes, though the Tennessee statutory system contained an additional presumption,

the Mayes court’s separate treatment of that presumption did not alter its conclusion on this point.

No. 09-1073 Crump v. Lafler Page 20

of record facts and personal observation filtered through the experience of the decision-

maker and leading to a predictive judgment as to what is best both for the individual

inmate and for the community.” Greenholtz, 442 U.S. at 8. Nonetheless, the Court

found that Nebraska’s parole system created a presumption of release on parole even

though the Nebraska statute “require[d] the [parole b]oard to assess whether, in light of

the nature of the crime, the inmate’s release will minimize the gravity of the offense,

weaken the deterrent impact on others, and undermine respect for the administration of

justice.” Id.

The Michigan factors relevant to a “high probability of parole” classification are

no more discretionary or amorphous: the characteristics of the crime, the prisoner’s prior

criminal record and mental health, the prisoner’s conduct during incarceration, and so

on. See Mich. Admin. Code r. 791.7716; see also id. r. 791.7715. And the fact that

Michigan’s parole system only gives some inmates a legitimate expectation of parole is

of no moment, for parole systems typically segregate inmates into distinct classes, some

of whom are eligible for parole (and thus a possible liberty interest) and some of whom

are not. See, e.g., Mich. Comp Laws § 791.234. The Montana parole system analyzed

in Allen did precisely the same thing. See Mont. Code Ann. § 46-23-201 (1985). Here,

Michigan’s statutory scheme simply conducts a further narrowing of the subcategory of

inmates possessing a liberty interest through classification of inmates into different

categories based on their likelihood of parole. See Mich. Admin. Code r. 791.7716. The

Court did not find that a statutory delineation of which inmates may be eligible for

parole affected the liberty interest in Allen, so it cannot affect our analysis here. See

Allen, 482 U.S. at 376-77 & n.7 (citing Mont. Code Ann. § 46-23-201 (1985)).

Second, the majority attests that “substantial and compelling reasons” is a

“broad, and undefined, expression of the factual predicate [which] necessarily vests

greater discretion in the [parole b]oard than those in Allen and Greenholtz.” Slip Op. at

13–14. This is not so. The “substantial and compelling reasons” requirement permits

no more discretion than the enumerated factors in those cases. See, e.g., People v.

Babcock, 666 N.W.2d 231, 237 (Mich. 2003); In re Parole of Johnson, 556 N.W.2d 899,

No. 09-1073 Crump v. Lafler Page 21

902 (Mich. Ct. App. 1996); Hicks v. Parole Bd., No. 224807, 2001 WL 792153, at *3-4

(Mich. Ct. App. Jan. 9, 2001) (per curiam) (assessing “substantial and compelling” in

the context of a parolee with a “high probability of parole” using factors identical to

those considered in Allen and Greenholtz). The statutes in Greenholtz and Allen

included such broad considerations as “the best interests of society,” and the Nebraska

statute in Greenholtz included a catch-all additional factor. See Allen, 482 U.S. at 376

(citing Mont. Code Ann. § 46-23-201(2) (1985)); Greenholtz, 442 U.S. at 11 & n.5

(citing Neb. Rev. Stat. § 83-1,114(2) (1976)). In all of these cases, the statutory schemes

contained parole factors that the majority here terms “broad, and undefined.” Slip Op.

at 13. Yet the point is not the “quantif[ication of] the discretion vested with” a parole

board, id. at 8, but the determination of “whether the statute contains mandatory

language [that] creates a presumption of release when the designated findings are made,”

id. at 9, which—as discussed above—the Michigan parole guidelines do for prisoners

with a “high probability of parole.”

Finally, the majority erroneously tries to distinguish a “presumption” from a

“probability” by equating the former with a “guarantee.” A “presumption,” however,

is merely “an attitude or belief dictated by a probability,” Merriam-Webster, Webster’s

Third New International Dictionary 1796 (1993) (emphasis added), or a “legal inference

or assumption . . . based on the known or proven existence of some other fact or group

of facts,” Black’s Law Dictionary (9th ed. 2009). Cf. Greenholtz, 442 U.S. at 11

(rejecting the notion that a parole scheme that contained a mere “possibility” of parole

created a liberty interest).

In sum, because Michigan’s parole system “creates a presumption that parole

release will be granted” to inmates with a “high probability of parole,” see Greenholtz,

442 U.S. at 12; Mich. Comp. Laws § 791.233e(6), it creates a liberty interest for these

individuals. I respectfully dissent.