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USCA6: No Liberty Interest in Parole in Michigan

The Sixth Circuit today held that Michigan's parole scheme does not create a constitutionally protected liberty interest cognizable on federal habeas review:

[I]n 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."
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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." 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." 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.
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Austrian philosopher Ivan Illich observed, "we must rediscover the distinction between hope and expectation." 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 hopes. They arise instead from legitimate claims of entitlement. 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." 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.
(Citations omitted.)

The opinion is by District Judge Cleland, sitting by designation, joined by Judge Gibbons.  Judge Cole dissents.  Look for this to go en banc.

AP story here.

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