United States District Court, E.D. Tennessee
A. VARLAN UNITED STATES DISTRICT JUDGE
Court is in receipt of a motion for leave to proceed in
forma pauperis [Doc. 1], a pro se prisoner's
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 [Doc. 2], and a motion for a declaratory
order [Doc. 3]. For the reasons set forth below,
Petitioner's motion to proceed in forma pauperis
[Doc. 1] will be GRANTED, the petition [Doc.
2] will be DENIED as frivolous, the motion
for declaratory order [Doc. 3] will be DENIED as
moot, and this action will be
apparent from his motion for leave to proceed in forma
pauperis [Doc. 1] that Petitioner cannot pay the filing
fee. As such, this motion [Id.] will be
after the filing of a petition for habeas corpus, the court
must review 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. Where
the court makes such a finding, the court should summarily
dismiss the petition. Rule 4; see Allen v. Perini,
424 F.2d 134, 141 (6th Cir. 1970) (providing that a district
court has the duty to “screen out” petitions that
lack merit on their face).
petition, Petitioner seeks to challenge the Tennessee
Department of Correction's decision not to certify
Petitioner for a parole hearing and states that he “is
challenging the procedures used to determine his parole
eligibility date” based on his assertion that these
procedures amount to a due process violation because
Tennessee has adopted statutes and/or rules creating a
liberty interest in parole [Doc. 2 p. 2-6].
Petitioner previously filed a substantively identical claim
under § 1983 regarding a denial of a parole eligibility
hearing that a Court in this District dismissed at screening
due to its failure to allege a constitutional violation.
Settle v. Tennessee Department of
Correction, No. 3:11-CV-567-TWP-HBG (E.D. Tenn. April
18, 2012). Petitioner appealed this dismissal to the United
States Court of Appeals for the Sixth Circuit, which affirmed
the district court's judgment. Settle v. Tennessee
Department of Correction, 487 Fed.Appx. 290,
290-91 (6th Cir. 2012). In doing so, the Sixth Circuit set
forth the following reasoning:
Settle claims that his due process rights were violated when
he was denied a parole hearing in 2011. To establish a due
process violation, a complainant must first show that he or
she has a protected property or liberty interest in parole.
Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668
(1979); Inmates of Orient Corr. Inst. v. Ohio State Adult
Parole Auth., 929 F.2d 233, 235 (6th Cir.1991). A
liberty interest in parole eligibility derives only from
state law. See, e.g., Crumpv.Lafler, 657
F.3d 393, 397 (6th Cir.2011); Inmates of Orient Corr.
Inst., 929 F.2d at 235. We have previously held that
Tennessee law has not created a liberty interest in parole
eligibility. Tenn. Code Ann. §§ 40- 28-117(a) and
40-3-503(b); Wright v. Trammell, 810 F.2d 589,
590-91 (6th Cir.1987). Because Settle has no substantive
liberty interest in parole, the procedures used to deny him
parole cannot be challenged. See Olim v.
Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 75
L.Ed.2d 813 (1983); Sweeton v. Brown, 27 F.3d 1162,
1164-65 (6th Cir.1994) (en banc). Accordingly, Settle's
due process claim is without merit.
Petitioner has recently filed a substantively similar claim
for habeas corpus relief alleging a denial of due process
arising out of a denial of a parole hearing that he alleged
resulted from incorrect parole eligibility date calculations
that this Court dismissed because Petitioner did not allege a
constitutional violation. See Settle v. Parris, No.
3:19-CV-302-TAV-DCP [Docs. 10 and 11] (E.D. Tenn. Oct. 16,
2019). In doing so, the Court set forth the
Petitioner's allegations do not raise a constitutional
issue. It is fundamental that a petitioner is only entitled
to federal habeas relief if he is imprisoned in violation of
the federal constitution or federal laws. See 28
U.S.C. §§ 2241(c)(3), 2254(a). It is also well
established that there is no constitutional right to
parole. See Board of Pardons v. Allen, 482 U.S. 369,
373 (1987); Wolff v. McDonnell, 418 U.S. 539, 557
(1974). Rather, a protected liberty interest in parole exists
only when State law creates “a legitimate claim of
entitlement to it[.]” Inmates of Orient Corr. Inst.
v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th
Cir. 1991) (quoting Greenholtz v. Inmates of the Nebraska
Penal & Corr. Complex, 422 U.S. 1, 7 (1979)).
Tennessee inmates do not have an entitlement to parole; they
have, at most “a mere hope that the benefit will be
obtained.” Wright v. Trammell, 810 F.2d 589,
590-91 (6th Cir. 1987) (citation omitted); see also
Tenn. Code Ann. §§ 40-28-117(a) (defining parole as
“a privilege and not a right” and holding that if
parole board determines that parole is appropriate “the
prisoner may be paroled”). Because Tennessee law
provides the parole board with discretion in determining