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
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LUCIUS CRUMP,
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Petitioner-Appellant,
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No. 09-1073
v.
,
>
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Respondent-Appellee. -
BLAINE C. LAFLER,
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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.