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Witzke v. Brewer

United States Court of Appeals, Sixth Circuit

February 22, 2017

Scott Andrew Witzke, Petitioner-Appellant,
v.
Shawn Brewer, Warden, Respondent-Appellee.

          Argued: February 2, 2017

         Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:15-cv-12429-Denise Page Hood, Chief District Judge.

         ARGUED:

          Sam Scaritt-Selman, UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant.

          Raina I. Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

         ON BRIEF:

          Sam Scaritt-Selman, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant.

          Raina I. Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

          Before: GIBBONS, COOK, and KETHLEDGE, Circuit Judges.

          OPINION

          COOK, Circuit Judge.

         Petitioner Scott Witzke seeks habeas relief under 28 U.S.C. § 2254, asserting that a Michigan order revoking his parole violated his due process rights. The district court dismissed his petition for failure to exhaust state remedies, and a panel of this court later issued a certificate of appealability on that issue. After Witzke appealed, however, the Michigan Parole Board released him on parole. Because there is no longer any remediable injury, we DISMISS the appeal as MOOT.

         I.

         Witzke is currently serving four sentences in the Michigan Department of Corrections (MDOC) for "uttering and publishing, " that is, using forged financial instruments. See Mich. Comp. Laws § 750.249. In May 2013, the Parole Board released Witzke on parole for a 15-month term. But a year later, authorities arrested him for eight alleged parole violations, including a new criminal conviction for using a fake check at a guitar store. Following his arrest, Witzke appeared before an MDOC agent, who found probable cause for all eight counts. Witzke pled guilty to two of them. At a second hearing in August 2014, another MDOC officer dismissed all remaining counts except the fraudulent check violation. Finding Witzke guilty of that violation, the officer recommended that the Parole Board revoke Witzke's parole. In September, the Parole Board adopted the recommendation.

         Without seeking relief in Michigan courts, Witzke filed a pro se habeas petition under 28 U.S.C. § 2254 in the Eastern District of Michigan, challenging the September 2014 parole revocation as a violation of his due process rights and requesting a new hearing before the Parole Board. He claimed entitlement to "relief . . . [due to] the failure of the Michigan Parole Board to provide [him] with an in-person hearing before the decision maker on the question of whether parole ...


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