Petition for Writ of Certiorari — Patrick Neil Kinney, Petitioner v. Connie Horton, Warden

APPENDIX A

Order of the United States Court of Appeals for the Sixth Circuit

Denying a Certificate of Appealability issued January 2, 2019

Case: 18-2006 Document: 7-1 Filed: 01/02/2019 Page: 1 (1 of 3)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

Deborah S, Hunt POTTER STEWART U.S. COURTHOUSE Tel. (513) 564-7000

Clerk CINCINNATI, OHIO 45202-3988 www.ca6.uscourts, gov

Filed: January 02, 2019

Ms. Mary Anna Owens

Law Offices

124 E, Fulton

Suite 100

Grand Rapids, MI 49503

Re: Case No. 18-2006, Patrick Kinney v. Connie Horton

Originating Case No. : 2:18-cv-00027

Dear Counsel,

The Court issued the enclosed Order today in this case.

Sincerely yours,

s/Jennifer Earl

Case Manager

Direct Dial No. 513-564-7066

cc: Mr. Thomas Dorwin

Enclosure

No mandate to issue

Case: 18-2006 Document: 7-2 Filed: 01/02/2019 Page: 1 (2 of 3)

No. 18-2006

UNITED STATES COURT OF APPEALS

>

FOR THE SIXTH CIRCUIT y

FILED

PATRICK NEIL KINNEY, ) Jan 02, 2019

) DEBORAH S. HUNT, Clerk

Petitioner-Appellant, ) Ne D

)

V. ) ORDER

)

CONNIE HORTON, Warden, )

)

Respondent-Appellee. )

Patrick Neil Kinney, a Michigan state prisoner, moves through counsel for a certificate of

appealability to appeal the district court’s dismissal of his petition for a writ of habeas corpus,

filed pursuant to 28 U.S.C. § 2254.

Kinney is serving a life sentence for second-degree murder. This petition does not

address his conviction, but a 2014 decision finding him guilty of a prison misconduct for

possessing escape material (a drawing of the prison fence). Kinney unsuccessfully challenged

the misconduct finding in the state courts. Kinney alleged that as a result of the conviction, he

was temporarily sentenced to segregation and placed at a higher security level, and that his

eligibility for parole was affected. The underlying claim raised was that the rule prohibiting

possession of escape material was unconstitutionally vague and did not provide him fair notice

that his conduct was a violation. Therefore, he alleged that he was denied due process.

The district court screened the petition and dismissed it, concluding that the claim was

not properly brought under § 2254 because Kinney was challenging only the conditions of his

confinement. Alternatively, the court concluded that the claim did not state a due process

violation because the misconduct finding did not necessarily affect the length of Kinney’s

confinement.

Case: 18-2006 Document: 7-2 Filed: 01/02/2019 Page: 2

No. 18-2006

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Kinney argues that his claim is properly brought under § 2254 and repeats his claim that

his due process rights were violated. In order to be entitled to a certificate of appealability,

Kinney must demonstrate that jurists of reason would find it debatable whether his petition stated

a valid claim of the denial of a constitutional right and whether the district court was correct in

its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 478 (2000).

The district court dismissed the petition on the ground that Kinney was challenging only

the conditions of his confinement, citing Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004).

In two previous appeals of a similar nature, this court considered the merits of Kinney’s claims

without deciding whether they were properly brought under § 2254. (Case Nos, 08-2515 and 13-

2327).

However, even if it is assumed that jurists of reason would find it debatable whether the

district court’s dismissal on this ground was correct, Kinney has failed to establish that jurists of

reason would find it debatable whether his petition stated a valid claim of the denial of a

constitutional right. The district court cited Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), for

the proposition that a misconduct conviction in a Michigan prison does not give rise to a due

process claim because it does not implicate a liberty interest, as it does not necessarily affect the

length of the prisoner’s confinement. Kinney argues that a liberty interest was found in Harden-

Bey v. Rutter, 524 F.3d 789, 794-95 (6th Cir. 2008), where the prisoner was subject to indefinite

administrative segregation, and in Wilkinson vy. Austin, 545 U.S. 209, 224 (2005), where the

misconduct disqualified the prisoner from parole eligibility. However, here Kinney’s placement

in segregation was not indefinite and he continues to be eligible for parole consideration.

For the above reasons, the motion for a certificate of appealability is DENIED.

ENTERED BY ORDER OF THE COURT

tha Adhd

Deborah S. Hunt, Clerk

(3 of 3)

APPENDIX B

Order of the United States District Court for the Western District of

Michigan Denying Habeas Corpus Petition issued August 8, 2018

(ECF No. 3, PageID.133-143)

Case 2:18-cv-00027-GJQ-TPG ECF No. 3 filed 08/08/18 PagelD.133 Page 1 of 9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

PATRICK NEIL KINNEY,

Petitioner, Case No. 2:18-cv-27

v. Honorable Gordon J. Quist

CONNIE HORTON,

Respondent.

/

OPINION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.

Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary

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

any 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. If so, the petition must be summarily

dismissed, Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the

duty to “screen out” petitions that lack merit on their face), A dismissal under Rule 4 includes

those petitions which raise legally frivolous claims, as well as those containing factual allegations

that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999), After

undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed

because it fails to raise a meritorious federal claim.

Case 2:18-cv-00027-GJO-TPG ECF No. 3 filed 08/08/18 PagelD.134 Page 2 of 9

Discussion

I. Factual allegations

Petitioner Patrick Neil Kinney is incarcerated with the Michigan Department of

Corrections at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County,

Michigan. Petitioner is serving a life sentence for second-degree murder. On March 1, 2018,

Petitioner filed his habeas corpus petition challenging a March 3, 2014, misconduct conviction for

possession of dangerous contraband, which consisted of a drawing/diagram of the security

perimeter at the Alger Maximum Correctional Facility (LMF). See ECF No. 1-6, PageID.83.

Following the decision of Hearing Officer Maki that Petitioner was guilty of

possession of dangerous contraband, Petitioner was granted a rehearing on June 27, 2014, The

rehearing order asked for three aspects of the case to be examined and for findings of fact on each

of the aspects, Following rehearing, Hearing Officer Marutiak concluded that Petitioner had

sufficient notice that a drawing of the facility grounds could be considered escape material, that

Petitioner did not make the drawing with a nefarious purpose such as an escape attempt, and that

Petitioner was not legitimately authorized by MDOC staff to create the drawing for an art project.

Hearing Officer Marutiak affirmed the misconduct conviction. See ECF No. 1-5, PageID.75-79.

Petitioner subsequently sought judicial review of the misconduct conviction in the

Ingham County Circuit Court. On September 3, 2015, the Ingham County Circuit Court affirmed

the misconduct conviction. See ECF No. 1-4. This decision was affirmed by the Michigan Court

of Appeals on January 19, 2017. See ECF No. 1-3. On June 27, 2017, the Michigan Supreme

Court denied application for leave to appeal. See ECF No. 1-7.

Petitioner filed this application for habeas corpus relief on March 1, 2018. The

Case 2:18-cv-00027-GJQ-TPG ECF No. 3 filed 08/08/18 PagelD.135 Page 3 of 9

petition raises one ground for relief: “The ‘dangerous contraband’ rule did not provide fair notice

that Petitioner’s painting was ‘escape material,’ in violation of the Due Process Clause of the

Fourteenth Amendment.” See ECF No. 1, PageID.6.

IL. AEDPA standard

This action is governed by the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA “prevents federal habeas ‘retrials’”

and ensures that state court convictions are given effect to the extent possible under the law. Bell

vy. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a

person who is incarcerated pursuant to a state conviction cannot be granted with respect to any

claim that was adjudicated on the merits in state court unless the adjudication: (1) 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; or (2) resulted in a decision

that was based upon an unreasonable determination of the facts in light of the evidence presented

in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to

meet.” Woods v. Donald, 575 U.S. _, 135 8. Ct. 1372, 1376 (2015) (internal quotation omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme

Court, 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of the

Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652,

655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not

consider the decisions of lower federal courts. Williams, 529 U.S. at 381-382; Miller v. Straub,

299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, “clearly established Federal law” does not

include decisions of the Supreme Court announced after the last adjudication of the merits in state

Case 2:18-cv-00027-GJQ-TPG ECF No. 3 filed 08/08/18 PagelD.136 Page 4 of 9

court. Greene v. Fisher, 565 U.S. 34 (2011). Thus, the inquiry is limited to an examination of the

legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court

precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642,

644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

A federal habeas court may issue the writ under the “contrary to” clause ifthe state

court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if

it decides a case differently than the Supreme Court has done on a set of materially

indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy

this high bar, a habeas petitioner is required to ‘show that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement.’” Woods,

135 S. Ct at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words,

“Cwlhere the precise contours of the tight remain unclear, state courts enjoy broad discretion in

their adjudication of a prisoner’s claims.” White v. Woodall, 572 U.S.___, 1348, Ct. 1697, 1705

(2014) (internal quotations omitted).

The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,

160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is

presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.

2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state

appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith

v, Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989),

Case 2:18-cv-00027-GJQ-TPG ECF No. 3 filed 08/08/18 PagelD.137 Page 5 of 9

II. Analysis

As noted above, Petitioner is serving a life sentence. As a result of the misconduct

conviction being challenged in this habeas corpus petition, Petitioner was sentenced to 20 days of

detention in segregation and 20 days loss of privileges. Where a prisoner is challenging the very

fact or duration of his physical imprisonment and the relief that he seeks is a determination that he

is entitled to immediate release or a speedier release from that imprisonment, his sole federal

remedy is a petition for writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

However, habeas corpus is not available to prisoners who are complaining only of the conditions

of their confinement or mistreatment during their legal incarceration. See Martin v. Overton, 391

F.3d 710, 714 (6th Cir. 2004); Lutz v. Hemingway, 476 F. Supp. 2d 715, 718 (E.D. Mich. 2007).

Complaints concerning conditions of confinement “do not relate to the legality of the petitioner’s

confinement, nor do they relate to the legal sufficiency of the criminal court proceedings which

resulted in the incarceration of the petitioner.” Lutz, 476 F. Supp. 2d at 718 (quoting Maddux v.

Rose, 483 F. Supp. 661, 672 (E.D, Tenn. 1980)). Because Petitioner’s misconduct conviction does

not affect the length of his sentence, his claim “fall[{s] outside of the cognizable core of habeas

corpus relief.” Hodges v. Bell, 170 F. App’x 389, 393 (6th Cir. 2006).

An inmate like Petitioner may, however, bring a claim challenging the conditions

of his confinement under 42 U.S.C. § 1983. However, a prisoner’s ability to challenge a prison

misconduct conviction in federal court depends on whether the convictions implicated any liberty

interest. In the seminal case in this area, Wolff v. McDonnell, 418 U.S. 539 (1974), the Court

prescribed certain minimal procedural safeguards that prison officials must follow before

depriving a prisoner of good-time credits on account of alleged misbehavior. The WolffCourt did

Case 2:18-cv-00027-GJQ-TPG ECF No. 3 filed 08/08/18 PagelD.138 Page 6 of 9

not create a free-floating right to process that attaches to all prison disciplinary proceedings; rather

the right to process arises only when the prisoner faces a loss of liberty, in the form of a longer

prison sentence caused by forfeiture of good-time credits:

It is true that the Constitution itself does not guarantee good-time credit for

satisfactory behavior while in prison. But here the State itselfhas not only provided

a statutory right to good time but also specifies that it is to be forfeited only for

serious misbehavior. Nebraska may have the authority to create, or not, a right to

a shortened prison sentence through the accumulation of credits for good behavior,

and it is true that the Due Process Clause does not require a hearing “in every

conceivable case of government impairment of private interest.” But the State

having created the right to good time and itself recognizing that its deprivation is a

sanction authorized for major misconduct, the prisoner’s interest has real substance

and is sufficiently embraced within Fourteenth Amendment “liberty” to entitle him

to those minimum procedures appropriate under the circumstances and required by

the Due Process Clause to insure that the state-created right is not arbitrarily

abrogated.

Wolff, 418 U.S. at 557 (citations omitted).

Petitioner does not allege that his major misconduct convictions resulted in any loss

of good-time credits, nor could he. The Sixth Circuit has examined Michigan statutory law, as it

relates to the creation and forfeiture of disciplinary credits! for prisoners convicted of crimes

occurring after April 1, 1987. In Thomas v. Eby, 481 F.3d 434 (6th Cir. 2007), the court determined

that loss of disciplinary credits does not necessarily affect the duration of a prisoner’s sentence.

Rather, it merely affects parole eligibility, which remains discretionary with the parole board. Id.

at 440. Building on this ruling, in Nali v. Ekman, 355 F. App’x 909 (6th Cir. 2009), the court held

that a misconduct citation in the Michigan prison system does not affect a prisoner’s

constitutionally protected liberty interests, because it does not necessarily affect the length of

1 For crimes committed after April 1, 1987, Michigan prisoners earn “disciplinary credits” under a statute that

abolished the former good-time system. Mich. Comp. Laws § 800.33(5).

6

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confinement. 355 F. App’x at 912; accord, Taylor vy. Lantagne, 418 F. App’x 408, 412

(6th Cir. 2011); Wilson v. Rapelje, No. 09-13030, 2010 WL 5491196, at * 4 (E.D. Mich. Nov. 24,

2010) (Report & Recommendation) (holding that the “disciplinary hearing and major misconduct

sanction does not implicate the Fourteenth Amendment Due Process Clause”), adopted as

judgment of court, 2011 WL 5491196 (Jan. 4, 2011). In the absence of a demonstrated liberty

interest, Petitioner has no due-process claim based on the loss of disciplinary credits. See Bell v.

Anderson, 301 F. App’x 459, 461-62 (6th Cir. 2008).

Even in the absence of a protectible liberty interest in disciplinary credits, a prisoner

may be able to raise a due-process challenge to prison misconduct convictions that result in a

significant, atypical deprivation. See Sandin v. Connor, 515 U.S. 472 (1995). Petitioner has not

identified any significant deprivation arising from his convictions. Unless a prison misconduct

conviction results in an extension of the duration of a prisoner’s sentence or some other atypical

hardship, a due-process claim fails. Ingram v. Jewell, 94 F. App’x 271, 273 (6th Cir. 2004). As

noted above, Petitioner has failed to allege any such deprivation. Therefore, even if Petitioner’s

claim was brought in the context of a civil rights action, it would fail to state a claim.

Conclusion

In light of the foregoing, the Court will summarily dismiss Petitioner’s application

pursuant to Rule 4 because it fails to raise a meritorious federal claim.

Certificate of Appealability

Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of

appealability should be granted. A certificate should issue if Petitioner has demonstrated a

“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s

dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a

Case 2:18-cv-00027-GJOQ-TPG ECF No. 3 filed 08/08/18 PagelD.140 Page 8 of 9

determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would

be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of

Appeals that an issue merits review, when the Court has already determined that the action is so

lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it

is “somewhat anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate);

Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily

dismissed under Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d

44, 46 (2d Cir. 1989) (it was “intrinsically contradictory” to grant a certificate when habeas action

does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir.

1983) (issuing certificate would be inconsistent with a summary dismissal).

The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of

a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district

court must “engage in a reasoned assessment of each claim” to determine whether a certificate is

watranted. Jd. at 467. Each issue must be considered under the standards set forth by the Supreme

Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this

Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S.

at 484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”

Id. “A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El vy. Cockrell, 537

U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full merits review,

but must limit its examination to a threshold inquiry into the underlying merit of Petitioner’s

claims. Id.

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The Court finds that reasonable jurists could not conclude that this Court’s

dismissal of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner

a certificate of appealability,

The Court will enter a Judgment and Order consistent with this Opinion.

Dated: August 8, 2018 /s/ Gordon J. Quist

GORDON J. QUIST

UNITED STATES DISTRICT JUDGE

APPENDIX C

Opinion of the Michigan Court of Appeals Affirming the Misconduct

Conviction issued January 19, 2017

STATE OF MICHIGAN

COURT OF APPEALS

PATRICK NEIL KINNEY, UNPUBLISHED

January 19, 2017

Plaintiff-Appellant,

Vv No. 329588

Ingham Circuit Court

DEPARTMENT OF CORRECTIONS, LCNo. 15-000144-AA

Defendant-Appellee.

Before: O’ CONNELL, P.J., and MARKEY and MURRAY, JJ.

PER CURIAM.

In this prison-misconduct appeal, plaintiff argues that the prison rule under which he was

charged and. adjudicated is unconstitutionally vague. We disagree and affirm.

Plaintiff was charged with violating Michigan Department of Corrections (MDOC)

Prisoner Discipline Policy Directive 03.03.105, possession of dangerous contraband—escape

material, The charge is based on a detailed drawing that plaintiff created that: depicts the prison

security perimeter from a vantage point inside the prison. The drawing includes the fence,

support posts, guard tower, and light posts, Plaintiff claims that he created the drawing as an art

project and that he intended on submitting it in a contest in which he had previously participated,

Following a hearing, the misconduct charge was initially upheld. A hearings’ administrator who

ordered a rehearing requested that the next hearing officer determine whether the drawing was

escape material and whether plaintiff had sufficient notice that the drawing could be considered

escape material. The hearing officer subsequently determined that even though plaintiff likely

intended to use the drawing for an art project and not to attempt to escape, he was nevertheless

not authorized by prison staff to create the drawing. The hearing officer also determined that the

drawing was escape material based on the MDOC prisoner mail policy directive, which prohibits

prisoners from receiving drawings or detailed descriptions of corrections facilities that depict

. methods of escape. The hearing officer determined that plaintiff had sufficient notice that the

drawing could be considered escape material, noting that the prisoner mail policy clearly defines

escape material as including a detailed drawing of a prison facility and that the mail policy “adds

some of the lacking exemplifications in the pertinent part of the Prisoner Discipline Policy.”

Plaintiffs initial guilty adjudication was upheld.

Plaintiff filed an appeal in the circuit court, arguing that the prison rule prohibiting escape

material is unconstitutionally vague and that the hearing officer’s decision that plaintiff's

-1-

IK.

ir ‘, .

drawing was escape material was not supported by substantial evidence. The circuit court

affirmed, noting that the prisoner discipline policy did not define escape material but that the

“common definitions of escape material would obviously find that drawings of prison facilities

created with exacting details would constitute escape materials,” The court also noted that the

mail policy defined escape materials, which put plaintiff on notice that his drawing was

prohibited. Addressing plaintiff's argument that other prisoners had created similar drawings in

the past and gone unpunished, the court noted that the other drawings “were all stylized, artistic

depictions,” while plaintiff's drawing “as of an identifiable section of fencing and includes the

fence, support posts, guard tower, light posts, and even snow banks,” The court ultimately

determined that plaintiff had fair notice that his conduct was prohibited and that the prison rule

was not unconstitutionally vague.

When reviewing a decision of an administrative agency, a court must determine whether

the decision was authorized by law and whether the agency’s factual findings were “supported

by competent, material and substantial evidence.” Const 1963, art 6, § 28; MCL 791,255(4),

This Court must then decide “whether the lower court applied correct legal principles and

whether it misapprehended or grossly misapplied the substantial evidence to the agency’s factual

findings.” Boyd v Civil Serv Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). This

Court reviews de novo the interpretation of administrative regulations. In re Petition of Attorney

General for Investigative Subpoenas, 274 Mich App 696, 698; 736 NW2d 594 (2007).

Because the principles of statutory interpretation apply equally to the construction of

administrative rules, City of Romulus v Mich Dep’t of Environmental Quality, 260 Mich App 54,

65; 678 NW2d 444 (2003), this Court should presume the prison rule involved here to be

constitutional, and plaintiff must prove it is invalid. See People v Sadows, 283 Mich App 65, 67;

768 NW2d 93 (2009)(citations omitted)(“A statute is presumed constitutional, and the party

challenging the statute has the burden of proving its invalidity.”), A statute may be challenged

on vagueness grounds if it “does not provide fair notice of the conduct proscribed.” People v

Noble, 238 Mich App 647, 651; 608 NW2d 123 (1999), Fair notice, requires that a statute give a

person of ordinary intelligence a reasonable opportunity to know what is prohibited, Jd at 652.

“A statute is sufficiently definite if its meaning can fairly be ascertained by reference to judicial

interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of

words.” Jd.

If an administrative rule’s language is unambiguous, further judicial interpretation is not

allowed, but where the language is ambiguous, a court may “properly go beyond the words of the

statute or administrative rule to ascertain the drafter’s intent.” Jd. An agency’s interpretation of

its own administrative rule “is entitled to respectful consideration and, if persuasive, should not

be overruled without cogent reasons.” Jn re Complaint of Rovas Against SBC Mich, 482 Mich

90, 108; 754 NW2d 259 (2008). While “the agency’s interpretation cannot conflict with the

plain meaning of the statute,” it “can be particularly helpful for ‘doubtful or obscure’

provisions.” Id, (citation omitted),

‘The prisoner discipline policy directive lists possession of dangerous contraband as a

class I misconduct. According to the directive, dangerous contraband includes “escape

material,” but nowhere in the directive is that phrase defined, Defendant urges this Court to look

at the ordinary dictionary definition and the prisoner mail policy directive to interpret the phrase,

-2-

Given these tools of statutory construction, defendant contends, and we agree, it is clear that a

detailed drawing of a prison falls within the prohibited escape material and that plaintiffreceived

fair notice of this prohibition. Plaintiff, on the other hand, suggests that he should not be

required to read another policy directive to figure out what conduct the phrase prohibits, and he

contends that a plain reading of the prisoner discipline policy directive would not put him on

notice that a drawing of a prison intended for submission to an art show is prohibited conduct,

Under the docttine of in pari materia, statutes or rules “that relate to the same subject or

" that share a common putpose should, if possible, be read together to create a harmonious body of

law.” People v Mazur, 497 Mich 302, 313; 872 NW2d 201 (2015). MDOC policy directive

03.03.105 is entitled prisoner discipline, outlines procedures for prisoner discipline, and lists the

levels of misconduct, MDOC policy directive 05,03.118 is entitled prisoner mail, outlines rules

regarding the mail system, and describes mail content that a prisoner is prohibited from

receiving. Thus, both directives proscribe certain conduct, and the purpose of each directive is to

regulate prisoner conduct and foster a safe environment for the facility. Because they share a

common purpose, they should be read together.

“Rscape material” is not defined in policy directive 03.03.105, and: none of the listed

“common examples” are comparable to the drawing at issue here.’ MDOC policy directive

05,03.118 expressly prohibits “[m]Jail depicting, encouraging, or describing methods of escape

from a correctional facility .. . includ[ing] blueprints, drawings, or similar detailed descriptions

of correctional facilities... .” Id., | MM(16), Reading the two directives together because they

ate in pari materia, one cannot question that “escape material” as used within policy directive

03.03.105, includes “blueprints, drawings, or similar detailed descriptions of correctional

facilities,” policy directive 05.03.118. While plaintiff posits that a “person of ordinary

intelligence” should not be required to read multiple policy directives to determine what conduct

is prohibited, it is not unreasonable to require prisoners—who are inherently subject to strict

regulations—to know and understand all of the policy directives to which they are subject.

Because a prisoner is subject to the policy prohibiting incoming mail depicting escape methods

such as drawings of correctional facilities, it is reasonable to conclude that the policy prohibiting

escape material includes the same type of drawings. Thus, we conclude that plaintiff had fair

notice that he was subject to discipline for possessing a detailed drawing of the correctional

facility.

Plaintiff also incorporated into his vagueness argument claims that he was not given fair

notice because prison staff allowed plaintiff to receive drawings of prisons through the mail and

allowed other prisoners to make drawings of prisons in the past without punishment. In support

of his position, plaintiff relies heavily on Wolfel v Morris, 972 F2d 712 (CA 6, 1992). In Wolfel,

prisoners circulated the signature page of petitions among facility inmates, Id. at 714. The

facility’s guards and officials seized the pages and charged the prisoners with “possession of,

1 Both parties note that the policy directive has now been amended to include as common

examples of escape material “blueprints, ‘drawings, or similar detailed descriptions of

correctional facilities, courthouses, and medical care facilities.”

3.

cofispiracy to possess, or attempt to possess contraband” in violation of prison rules. Jd The

Wolfel court noted that prisoners in the past had been allowed to circulate numerous petitions

without punishment, Jd. at 717. Therefore, the court found that the prisoners charged in the case

“had no reason to believe that they were engaging in activity prohibited by prison regulations,”

noting that their conduct “was ‘virtually identical to conduct previously tolerated.’ ” Jd, quoting

Waters v Peterson, 161 US App DC 265, 274; 495 F2d 91 (1973). Ultimately, the Wolfel court

held that the prisoners’ punishment “violated their due process rights since they had no fair

warning that they were engaging in prohibited activity.” Id.

The case at hand is distinguishable from Wolfel, Contrary to plaintiffs assertion, there is

no evidence that prison officials allowed other prisoners to make similar drawings in the past

without punishment, The drawings that are included in the agency record are substantially

different. Some include artistic imagery and are not intended to factually represent the details of

an existing prison structure. They are not “detailed drawings” that depict the prison perimeter

and highlight the intricacies of the prison security system. The included drawings that do include

some detail are from a vantage point outside of the facility. Plaintiff's drawing depicts in detail a

section of the prison perimeter from inside the facility, including the fence, posts, guard tower,

lighting, and snow banks. Thus, the fact that these other drawings did not trigger punishment

does not negate the fair-notice analysis above or render the prison rule void for vagueness.

Plaintiff also references his intent as a factor to determine whether he had fair notice that

his conduct was prohibited. Intent is neither a part of a vagueness analysis nor a part of the rule

under which plaintiff was charged. A rule provides fair notice if it gives “a person of ordinary

intelligence a reasonable opportunity to know what is prohibited.” Noble, 238 Mich App at 652

(emphasis added). The rule at issue states nothing regarding intent—it merely prohibits a

prisoner from possessing dangerous contraband, including escape material. Thus, even if

plaintiff's only intent were to submit his drawing to an art competition, he was still given fair

notice that he could not possess such a detailed drawing of a prison. And the rule provided fair

notice that his intent in possessing the drawing was not relevant. Therefore, the administrative

rule prohibiting escape material was not void for vagueness as applied to the facts of this case.

We affirm.

/s/ Peter D, O'Connell

/s/ Jane E, Markey

/s/ Christopher M. Murray

APPENDIX D

Opinion of the Michigan Trial Court Affirming the Misconduct

Conviction issued September 3, 2015

STATE OF MICHIGAN

IN THE 30TH JUDICIAL CIRCUIT FOR INGHAM COUNTY

PATRICK NEAL KINNEY, #253729,

Petitioner, OPINION & ORDER

Vv CASENO, 15-144-AA

MICHIGAN DEPARTMENT OF HON, WILLIAM E. COLLETTE

CORRECTIONS,

in his official capacity.

Respondents.

At a session of said Court

held in the city of Mason, county of Ingham,

this 3RO__ day of ac ne

PRESENT: HON. WILLIAM E. COLLETTE

This case comes before the Court on Patrick Kinney’s (Petitioner) petition for

judicial review of a major misconduct ticket issued by the Michigan Department of

Corrections (MDOC) which found him guilty of possessing dangerous contraband, that

being escape materials. This Court, being fully apprised of the premises, AFFIRMS the

MDOC’s determination.

FACTS

While Petitioner was housed at the Alger Correctional Facility (LMF), staff

conducted a search of Petitioner’s property and located an incomplete drawing or painting

of the LMF security perimeter, including the fence, support posts, lighting, and a guard

tower. Petitioner was given a class I major misconduct ticket for dangerous contraband.

Petitioner was afforded a hearing on the ticket on March 3, 2014, and Hearing

Officer Maki found him guilty of possessing dangerous contraband, finding that the

drawing was an accurate depiction of the security perimeter and therefore constituted

escape materials. The MDOC granted Petitioner’s request for a rehearing, ordering the

hearing officer to address three issues: 1) whether a drawing of a prison facility could

constitute escape material; 2) whether the drawing could be used to escape versus merely

being art; and 3) whether Petitioner was on notice that the drawing could constitute escape

iiaterial.

At the re-hearing, Hearing Officer Marutiak again found Petitioner guilty of

possessing dangerous contraband. With regards to the three questions the MDOC ordered

the HO to address, HO Marutiak found: 1) that the MDOC prisoner mail policy, PD

05,03.118, defined escape materials as including “blueprints, drawings, or similar details

descriptions of correctional facilities,” 2) that whether the drawing could be considered art

was immaterial, because the fact that the drawing was escape material superseded any

other potential use for the drawing; and 3) that the mail policy definitions of escape

material was sufficient to put Petitioner on notice that drawings of the LMF security

petimeter was disallowed, Furthermore, HO Marutiak noted that the MDOC did’ not

authorize Petitioner to make his drawing for any art project.

STANDARD OF REVIEW

After exhausting his administrative remedies, Petitioner is entitled to judicial

review of the final decision set forth in MCL 791.255(4), which provides:

The review shall be confined to the record and any supplemental proofs

submitted pursuant to subsection (3). The scope of the review shall be

limited to whether the department’s action is authorized by law or rule and

whether the decision or order is supported by competent, material and

substantial evidence on the whole record.

Substantial evidence is “the amount of evidence that a reasonable person would

accept as being sufficient to support a conclusion; it may be substantially less than a

preponderance of the evidence.” Wayne Co v Mich State Tax Comm, 261 Mich App 174,

186-87; 682 NW2d 100 (2004). Judicial review of an agency decision requires “great

deference be given to the findings of the administrative hearing officer.” Campbell v

Marquette Prison Warden, 119 Mich App 377, 385; 326 NW2d 516 (1982), A Hearing

Officer’s decision will be upheld so long as it is supported by substantial evidence on the

record to support the administrative agency’s decision. In re Payne, 444 Mich 769, 692;

514 NW2d 212 (1994). The Court will not interfere unless the Hearing Officer clearly

abused his discretion. Meadows v. Marquette Prison Warden, 117 Mich App 794, 798-99

(1982),

ANALYSIS

Petitioner argues that the MDOC policy directive that Petitioner was found guilty

of violating is unconstitutionally vague as applied to Petitioner’s drawing because the

policy directive regarding dangerous contraband prohibited “escape material” but did not

define escape material within that specific directive and therefore Petitioner did not have

fair notice that his drawing might be considered dangerous contraband. Petitioner also

argues that the directive gives improper enforcement discretion.

Although the dangerous contraband directive did not define escape material, the

directive does not exist in a vacuum. The common definitions of escape material would

obviously find that drawings of prison facilities created with exacting details would

constitute escape materials. Furthermore, the MDOC mail policy directive does define

escape materials as including drawing of the prison facilities, and this directive was

available to Petitioner as part of the entirety of the prison rules. Therefore, this Court finds

that the Petitioner did have fair notice that drawings of the prison facilities could have

constituted escape materials.

Petitioner also argues that the directive was unconstitutionally vague because it was

applied with improper enforcement discretion on the part of the authorities. The first HO

found Petitioner guilty based on his possession of the drawing and did not consider

whether the Petitioner intended to use it to escape or whether the drawing could actually

have been used to escape. The HA reversed, finding that the HO should have determined

whether the drawing could have been used to escape or whether the Petitioner intended to

use it in such a ne The second HO disagreed, finding that whether the Petitioner

intended to use it to escape or whether it could actually have been used to escape was

irrelevant, Both HOs then agree that the directive is violated by mere possession of escape

materials, Therefore, the directive was not applied with improper enforcement discretion

on the part of the authorities.

Petitioner further argues that the HO’s decision that the drawing was “escape

material” under the dangerous contraband policy directive was not supported by

competent, material, and substantial evidence of the record bacause the drawing was

incomplete and lacked detail, and therefore could not have been used to escape. Under the

plain meaning of “escape materials” and under the entirety of the MDOC policy directives,

including the mail policy, a drawing of a security perimeter clearly constitutes escape

material. The drawing of the fence, support posts, guard tower, and lighting, was material

that could have been used to circumvent those parts of the security perimeter. Although

some details were changed or not present, viewing the drawing side-by-side with

photographs, the drawing is very similar to the actual view. Therefore, the HO’s decision is

affirmed. |

Petitioner also argues that he was only required to have implicit authorization to

make the drawing, and that he had such implicit authorization, and therefore, his

possession of the drawing does not constitute possession of dangerous contraband.

However, participating in an art project at the prison does not authorize a prisoner to create

a drawingof the security perimeter layout with the fence, support posts, guard tower, and

lighting intact. The other drawings sent to Petitioner through the mail system were all

stylized, artistic depictions. For example, the drawing of a section of fence contained no

details of the fence’s context; there are no light posts, no guard towers, and no context

whatsoever. By contrast, Petitioners drawing is of an identifiable section of fencing and

includes the fence, support posts, guard tower, light posts, and even snow banks, It would

be dangerous precedent for this Court to find that a prisoner could create and possess

detailed drawings of the perimeter that mirrors the reality of the prison security systems

under the guise of an art proj ect. Therefore, this Court affirms the HO’s determination that

Petitioner did not have any authorization to create and possess such a drawing.

THEREFORE IT IS GRDERED that Respondent’s decision is AFFIRMED.

In compliance with MCR 2.602(A) (3), this Court finds that this decision resolves the

wo Oxf

Hon. William E. Collette ~ '

Circuit Court Judge

last pending claim and closes the case.

PROOF OF SERVICE

I hereby certify that I mailed a copy of the above ORDER which each attorney of |

record, or upon the parties, by placing the true copy in a sealed envelope, addressed to

each, with full postage prepaid and placing said envelope in the United States mail

Mason, Michigan, on ok ( LO 015. | jj

Kaciemith ( )-

Law Clerk

APPENDIX E

Order of the Michigan Supreme Court Denying Discretionary Review

issued June 27, 2017

Get a Document - by Citation - 896 N.W.2d 441 Page 1 of 1

896 N.W.2d 441; 2017 Mich. LEXIS 1300, *

PATRICK NEIL KINNEY, Plaintiff-Appellant, v DEPARTMENT OF CORRECTIONS, Defendant-

Appellee.

SC: 155299

SUPREME COURT OF MICHIGAN

896 N.W.2d 441; 2017 Mich, LEXIS 1300

June 27, 2017, Decided

PRIOR HISTORY: [#1] COA: 329588. Ingham CC: 15-000144-AA.

Kinney v. Dep't of Corr., 2017 Mich. App. LEXIS 95 (Mich. Ct. App., Jan. 19, 2017)

JUDGES: Stephen J. Markman, Chief Justice. Brian K. Zahra, Bridget M. McCormack, David F.

Viviano, Richard H. Bernstein, Joan L. Larsen, Kurtis T, Wilder, Justices.

OPINION

Order

On order of the Court, the application for leave to appeal the January 19, 2017 judgment of the

Court of Appeals is considered, and it is DENIED, because we are not persuaded that the

question presented should be reviewed by this Court.

TE wen tie fevnzzea: About LexisNexis | Privacy Policy | Terms & Conditions | t FLX. T™

iC LexisNexis Copyright © 2017 LexisNexis, a division of Reed Elsevier SER Cigaltle

https://web.lexisnexis.com/research/retrieve?_m=1922776a274a8f467f1 bffe529b7ff94&_b... 8/27/2017

APPENDIX F

Prison Misconduct Rehearing Report Finding Petitioner Guilty issued

July 18, 2014 (Agency Record, pp. 1-5).

SS. yo m oe) Ft gg yaad

. MICHIGAN DEPARTMENT OF CORRECTIONS ys L. a

GLASS | MISCONDUCT HEARING REPORT” yh | _ Rev. 19/40

;Piisoner,; | ‘Prisoner Narie™.,. are | Faciifty Gode | ‘Lock © | Violation Date

"283729" Kiriney ~ so 0" LAMP. . 02/26/2014

Charge(s) j ta a —— tat

(030) Possession of Dangerous Contraband « REHEARING co, ot _

If Charge Changed by Heating Officst” et, | Plea. rs : .

mt - a iz Guilty : DY Not Gullty

Misconduct Report oad to and Discussed with Prisoner DJ (check tfapplles) | No Hearing Investigation ‘Requested

Hearing Investigation, Read to and Discussed with Prisoner” © IX) (chebleitappliesy’ “| EY Tchisk tfappiies) ”

.

‘

EVIDENCE/STATEMENTS IN ADDITION TO. MISCONDUCT REPORT ,

ori Hs: Prisoner preseht, This ls a REHEARING ardeted by the Offloe of Legal Affalts on 06/27/14. whi rhea is

being conducted by video from HO's location at another facllity. ‘The original hearing was conducted by ALE Maki on

“ 03/03/14 at the AMF and Is hereby Incorporated Into this heating by reference, and by aitaphment Tha Incident al Issue

3 occurred at the LMF on 02/26/14, : . a awe

HO has verified from the record that the nilsoner recelved 24 nee sf this Rehiéaring and the prisoner coeds same,

Prior to the conimencement of this Rehearing and upon an initial review of the record, AME was asked fo afrange to have.

the actual drawing at Issue-avallable for the Rehearing which was to be done by vided, AMF was also as{ed to have the

appropriate staff (which, novi appears to LFM statf, where the misconduct report was written), either the pepsi Warden .°

(CONTINUED ON PAGE TWO: : EYIDENCEISTATEMENTS)

4"

"REASONS FOR FINDINGS 7

: property and became the, subject of an (030), Dangerous Contraband, tniscandinct ALM Mak] found the prisoner gu ny of

{the misconduct on 03/03/14 and. a Rehearing Order was subsequently Issued by’ the DOG on as/27/4 4, - ” S .

.

tty

The Rehearing Order. asks for thrae: () aspects of the case fo be examined and for: drains of feat on those infest

i. First, the Rehearing Order asks thig ALE fo determine fa drawing ofa nrtsot faclllty urotinderfenee ‘ata glides 2 as

. : /eScapa material, : The Order note’s that polley, (meaning the Prisoner Discipline Policy,

. | fist all Iteris that carl be Génsidered’ escape material and that it would be impossible to do so, a the ALE Imust deol It

: the drawing = adin Hedy showing the ‘security fence, tower and aroun ls .espape | matetfal r :

seen,

PD 03. 03.405) does not specifi icellly . |

tt is ‘undisputed thet pilsoner Kinney" was sin possession of-a drawing at the LMF on ozinit 4 Which was conf scated from his _

” Days Loss of Privileges og ._ Restftutfon

“ (CONTINUES ON PAGE FOUR’ REASONS FOR FINDINGS) mys fe S ms a a ree ©

. . “PROPERTY DISPOSITION Tor onan PD oT, ri rr nrrrne 2

whe ec mo, “FINDINGS * fo Mee,

7 Oharde Ned ‘ as Guilty a a Not Guilty. _ oO Dismissed" _ neporia ¢ ‘Gode (30) _

Chiargé No.2 o ‘LI Guilty ° Oo Not Guilty im] Disthissed. Reporting ¢ ‘Cade. —,

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"| ChargeNo4 *., °C Gulty 7” F ‘Not Guilty " £} Dismissed’ - _ Reporting Cote oe

DT .. DISPOSITION (select one or mer) Toploca LOP Serco Eat Ooam) «. or re

5 Begins En Ba Hoey ;

Days of Detention. a ott Days ona ’

Days Top Lock’. a Tt, . “ ; Hotirs Extie’ Duty

Miscondust Hearing Report attonally Handed fo Prisoner By Hearing Report: given to Btaff Member by Hediring Officer for Daler ta:

| Headng, Offfeat on this:dates | —— (he inApalics) O Prisoner this data; iad (2014 (Check it Applies) Kl. Lat

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[OCR skipped on page(s) 31-154]

[Read from a scan; the first 30 pages.]