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Petitioner, Hon.
Respondent.
__________________________________/
MEMORANDUM IN SUPPORT OF
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. 2241
TABLE OF CONTENTS
PAGE
LIST OF EXHIBITS.…………………………………………………………..………….………ii
INDEX OF AUTHORITIES……………………………………………………………..………iii
i
LIST OF EXHIBITS
14. February 11, 2005 letter from prison advocacy group to Parole Board
15. March 14, 2005 letter from Parole Board to prison advocacy group
ii
INDEX OF AUTHORITIES
Page
Federal cases
Boddie v New York State Division of Parole, 285 F Supp 2d 421 (2003)……….………23
Federal Statutes
28 USC §2241………………………………………………...…………………….8,10,23
28 USC §2241(a)………………………………………………….………………………8
28 USC §2254………………………………………………………….………………….8
28 USC §2254(d)-(e)(1)…………………………………………………..……………….9
28 USC §2255……………………………………………………………………………..8
42 USC §1983……………………………………………………………….………..12,14
US Const, Am XIV…………………………………………………………...…….10,23,24
Michigan Cases
MCL 8.3a…………………………………………………………………….…………..19
MCL 750.145c(2).....................................................................................................…...1,17
MCL 791.202………………………………………………………………………...……7
MCL 791.231…………………………………………………………………...………..15
791.233(1)(b)…………………………………………………………………………….16
MCL 791.233(1)(d)………………………………………………………………………16
MCL 791.233e(1)……………………………………………………………………..….15
MCL 791.233e(6)…………………………………………………………...………….5,15
MCL 791.234(5)……………………………………………………….…………………..7
MCL 791.234(9)……………………………………………………….……………….7,15
MCL 791.234(6)…………………………………………………………...……………..14
MCL 791.235(7)...............……………………………..……...............…………........…...3
v
STATEMENT OF QUESTIONS PRESENTED FOR REVIEW
vi
STATEMENT OF MATERIAL FACTS AND PROCEEDINGS
Petitioner, forty-eight year old Thomas A. Szawara, is a Michigan prisoner housed at the
Mid-Michigan Correctional Facility in St. Louis, Michigan, and serving a Michigan state court
On June 12, 2002, Mr. Szawara entered a guilty plea in Kent County Circuit Court for the
state of Michigan to one count of Child Sexually Abusive Activity or Material, Michigan
Compiled Law 750.145c(2), a felony punishable by imprisonment for not more than twenty years
and/or a fine of $100,000.00. Mr. Szawara’s guilty plea stemmed from a January 5, 2002,
incident involving a then-seventeen-year-old female, Erin G. Ware, whom he had met via the
internet. Specifically, the prosecution alleged in an Information that Mr. Szawara “did attempt
to, prepare to or conspire to arrange for, produce, jake (sic, “make”) or finance any child sexually
abusive material.” At his guilty plea, Mr. Szawara told the court that he had used a digital
(PSI) and recommended that the Court sentence Mr. Szawara to “serve a period of incarceration
Corrections PSI recommendation guidelines form mandates that this writer make a
attached hereto as Exhibit 1, pages 1-2. The presentence investigator calculated a guidelines
sentence range of 24 to 40 months. The PSI indicated that Mr. Szawara had not previously been
Mr. Szawara supplied a written statement to the Court in which he vigorously disputed
Ms. Ware’s claim that he had non-consensual sexual intercourse with her as well during their
encounter. His written statement is attached to the PSI, Exhibit 1. The victim spoke at the
1
August 19, 2002 sentencing and alleged that Mr. Szawara had intercourse with her against her
will during their encounter at a local motel. Sentencing Transcript, pp 4-10. That recital of the
incident was different in major part from the written statement she originally gave to police on
January 5, 2002, the day of the incident. That statement details a litany of consensual sexual
Prior to imposing sentence, the trial court sua sponte corrected the minimum guidelines
sentence range to read 15 to 25 months, indicating that offense variables 5 (psychological injury
penetration) were scored against Mr. Szawara when they should not have been. See transcript of
sentencing, attached hereto as Exhibit 3. The trial court acknowledged that the “crime to which
you pled guilty did not itself involve a sexual assault” but found that it “was a serious offense
that had all the same consequences in this particular case as a sexual assault.” Sentencing
Transcript, p. 17. The judge then sentenced Mr. Szawara to 2 to 20 years in prison with credit for
one day served and also ordered Mr. Szawara to pay costs totaling $1,120.00. The trial court
B. APPELLATE PROCEEDINGS
Mr. Szawara subsequently moved unsuccessfully to withdraw his guilty plea and for
resentencing. He attached to his motion for resentencing his affidavit swearing to the fact that
when he photographed Ms. Ware unclothed he was unaware that doing so was unlawful
regardless of whether the photo was for erotic purposes; in his affidavit he swore to his claim that
all sexual relations he had with Ms. Ware, including intercourse, were consensual.
Mr. Szawara appealed the trial court’s denial of his motion for resentencing to both the
Michigan Court of Appeals and the Michigan Supreme Court, and was denied leave on July 3,
2003, and September 28, 2004, respectively. Mr. Szawara has no other post-conviction motions
2
or appeals from the aforementioned conviction and sentence pending in any court, state or
federal.
earliest release date, i.e., parole eligibility date, as August 17, 2004, and on January 13, 2004, the
MDOC prepared a Parole Eligibility Report (PER) as required by MCL 791.235(7). The PER is
attached hereto as Exhibit 5. The PER briefly describes the offense conduct as follows:
On 1-5-02, prisoner met a young female at a motel in Grand Rapids that he had
communicated with on the internet in a chat room. Szawara asked to take a photo
of the young lady while she was nude, she said no, and he took a naked photo of
her anyway.”
The PER noted that Mr. Szawara had not committed any major misconduct violations during his
stay thus far with the MDOC and described Mr. Szawara’s “institutional adjustment” as
excellent. The report noted that Mr. Szawara was involved in an MDOC work assignment since
July 2, 2003, and receiving excellent reports. Mr. Szawara completed small business classes,
completed Sex Offender Therapy as of January 8, 2004, and in fact had completed all
contained not a single negative comment or remark; nor did it allege that he had not fulfilled any
A September 9, 2003, Block Report describes Mr. Szawara as “Quiet on unit, polite to
staff, no problems.” See attached Exhibit 6. Educational Program Plan forms dated March 20,
2003, June 25, 2003, and September 25, 2003, completed by MDOC staff following Mr.
Szawara’s completion of the classes reflect the highest marks of “excellent.” A January 30,
2004, MDOC Notice of Mental Health Services states that “Mr. Szawara has successfully
completed the one-year Sex Offender Program at Mid-Michigan Correctional Facility,” and a
January 30, 2004, MDOC Sex Offender Program Termination Report graded Mr. Szawara’s
performance in every aspect of the class as either excellent or good on a form asking the
3
therapist/evaluator to describe the participants progress or participation as “Excellent, Good,
Fair, or Poor.” The report is attached hereto as Exhibit 7 and states on page 2 that Mr. Szawara
“displayed full responsibility and accountability for his instant offense and other behavior that
In April 2004 Mr. Szawara received notice from the MDOC that the Michigan Parole
Board would conduct his first parole interview on May 26, 2004. The Notice is attached hereto
as Exhibit 8. In April 2004 the MDOC prepared Mr. Szawara’s Parole Guidelines Score Sheet,
calculating his parole guidelines score as a plus 7, a score placing Mr. Szawara in the category of
one with a high probability of parole.1 Mr. Szawara’s Parole Guidelines Scoresheet is attached
hereto as Exhibit 9. The scoresheet reflects that the MDOC found that “there was some use of
threat or force injury" in Mr. Szawara’s offense and scored him negative points for the same. See
Exhibit 9, Active Sentence Variables section. Under the Mental Health Variables section of the
parole guidelines scoring, the MDOC scored Mr. Szawara five negative points apparently
alleging that Mr. Szawara has a “history of physical or sexual assault related to a compulsive,
deviant, or psychotic mental state.” See Michigan Administrative Rule 791.7716(3)(g), a copy of
Mr. Szawara’s brother-in-law, Brad Malwin, accompanied Mr. Szawara at his parole
board interview. The interview was attended by Mr. Szawara, his brother-in-law, and a parole
board member. On June 15, 2004, the Michigan Parole Board rendered a Notice of Decision
denying parole and rescheduling Mr. Szawara’s new parole eligibility date as February 17, 2006.
The decision is attached hereto as Exhibit 11. As substantial and compelling reasons for the
Board’s decision to reject the parole guidelines’ recommendation to parole Mr. Szawara the
1
Inmates with a parole guidelines score equal to or greater than plus 4 are placed in a category with a high
probability of parole; inmates with a score of less than plus 4 but greater than -12 are placed in a category with an
average probability for parole; inmates with a score equal to or less than -12 are placed in a category with a low
probability of parole. See Hicks v Parole Board, 2001 WL 792153 (Mich App).
4
“P’s evasiveness and minimizing when asked about the crime and his use of the
internet raises serious concerns that P remains a risk to young women and girls.”2
The Board also alleged in its two-page decision that Mr. Szawara has a “history of/or currently
serving for CSC [criminal sexual conduct]” and that Mr. Szawara’s offense involved the “use of
On July 12, 2004, Mr. Szawara, through the instant counsel, wrote the Michigan Parole
Board requesting that the Board reconsider its decision for a number of reasons, all of which are
set forth in the letter attached hereto as Exhibit 12. The Michigan Parole Board denied Mr.
Szawara’s request for reconsideration in a July 21, 2004, letter, attached hereto as Exhibit 13,
stating that the Board did not have reasonable assurance that Mr. Szawara would not become a
In January 2005 Mr. Szawara hired Federal Prisons Consultants to write the Michigan
Parole Board and request that the Board reconsider Mr. Szawara for parole in twelve months
from his June 15, 2004, parole denial rather than eighteen months from that denial. A copy of
the four page letter from Federal Prison Consultants is attached hereto as Exhibit 14. On March
14, 2005, the Michigan Parole Board, through its department manager David Kleinhardt denied
the request to consider Mr. Szawara for parole at an earlier date. In its one-page reply letter, Mr.
Kelinhardt expressed his opinion, or that of the Board’s, that Mr. Szawara’s offense was an
“PSI indicates that during the sexual encounter the victim repeatedly told Szawara
to stop, but Szawara persisted and remained on top of her, pressing his weight on
her until she was able to forcefully push Szawara off from her, after several
unsuccessful attempts. Although the prisoner was convicted of Child Sexually
Abusive Material, the Parole Board must consider the crime in its entirety as
described in the PSI.”
A copy of Mr. Kleinhardt’s letter is attached hereto as Exhibit 15. The Board then issued an
Amended Notice of decision reiterating the eighteen-month continuance. Deleted from the
2
MCL 791.233e(6) requires the Parole Board to provide “substantial and compelling reasons stated in writing” for
any departure from the recommendation of the parole guidelines.
5
amended decision was the Board’s previous comment that Mr. Szawara had a “history of/or
currently serving for CSC.” A copy of the Amended Notice is attached hereto as Exhibit 16. Mr.
Szawara has heard nothing further from the Board since its March 14, 2005, letter to Federal
Prison Consultants and its amended notice of parole denial and eighteen month continuance.
6
LAW AND ARGUMENT
State of Michigan inmates can no longer get state judicial review of parole denials. A
1999 amendment, effective March 10, 2000, to Michigan’s Department of Corrections Act, MCL
791.202 et. seq., effectively ended direct review for inmates of parole denials by the Michigan
Parole Board. MCL 791.234(5) had since 1982 provided for appeals by leave to the circuit court
from a parole board decision, and in 1992 the statute was amended to specifically authorize
appeals by prosecutors and victims. 1999 PA 191 moved the relevant appeal language to MCL
791.234(9), at the same time deleting the language allowing inmate appeals; only appeals by
prosecutors or victims survived. The Michigan Supreme Court amended the applicable court
rule, MCR 7.104(D), to come into conformance with the legislative change.
In Morales v Michigan Parole Board, 260 Mich App 29 (2004); lv den 470 Mich 885
(6/30/04), the Michigan Court of Appeals held that inmates could not appeal parole denials under
the Michigan Department of Corrections Act, the Michigan Administrative Procedures Act, or
the Michigan Revised Judicature Act—the only three potential avenues by which an aggrieved
party could challenge a decision of the Michigan Parole Board (Hopkins v Parole Bd, 237 Mich
App 629, 637-638 (1999)). The Morales court also held that an equal protection challenge by
inmates because prosecutors and victims could appeal such decisions but inmates could not was
not subject to strict scrutiny analysis, and that the same did not violate the equal protection
Exhaustion
A remedy in state court is thus unavailable to Mr. Szawara, and the normal imperative
that he exhaust his state court remedies prior to proceeding with a federal habeas does not bar his
action herein. Exhaustion is not required in such instances. O’Sullivan v Boerckel, 526 US 838,
at 847-848 (1999).
7
Jurisdiction
Mr. Szawara files this Petition pursuant to 28 USC §2241 in that it is an attack on the
execution (§2241 actions) of his sentence rather than an attack on its legality or validity (§2254
actions for state prisoners and §2255 actions for federal prisoners). An attack on the execution of
a sentence is cognizable as a 28 USC §2241(a) habeas. United States v Jalili, 925 F 2d 889, 893
(6th Cir 1991); Chambers v United States, 106 F 3d 472, 474 (2d Cir 1997); United States v
Tubwell, 37 F 3d 175, 177 (5th Cir 1994). In this circuit, a challenge to the decision of the parole
authority shall be construed as filed under §2241 even if filed under §2254. In Re Slatton, 165 F
3d 28, 1998 WL 661148 (unpublished, 6th Cir 1998); Barclay v Renico, 2002 WL 1303038 (ED
Standard of Review
While it is clear that the Antiterrorism and Effective Death Penalty Act of 1996 affects
habeas petitions filed pursuant to §2254 and §2255, because the Act does not specifically
reference §2241, it is not well-settled whether petitions filed under that section are similarly
impacted. For example, in Felker v Turpin, 518 US 651 (1996) the Supreme Court held that
AEDPA did not apply to original petitions filed with the high court under §2241. It can be
argued that the more restrictive AEDPA provisions—successive petitions prohibition, the
limitations period, and the standard of review—do not apply to §2241 actions in that those
provisions are contained within amendments to §2254 and §2255 only, whereas the language of
§2241, the general habeas section, remained unchanged. Federal decisions addressing the issue
have stated that, particularly for a state prisoner, whether the attack is to the sentence’s validity
(§2254) or its execution (§2241), the collateral attack itself emanates from the “custody pursuant
a state court judgment”, and thus the requirements of AEDPA apply. Long v Commonwealth of
Kentucky, 80 Fed Appx 410, 2003 WL 22000286, (unpublished, 6th Cir 2003); Walker v O’Brien,
28 USC §2254(d)-(e)(1)
The decision of the Michigan Parole Board to deny Mr. Szawara parole involved an
unreasonable application of clearly established Federal law as determined by the Supreme Court
of the United States in Kentucky Department of Corrections v Thompson, 490 US 454 (1989);
Board of Pardons v Allen, 482 US 369 (1987), Olim v Wakinekona, 461 US 238 (1983);
Connecticut Board of Pardons v Dumschat, 452 US 458, 467 (1981), and Greenholtz v Inmates
Of the Nebraska Penal And Correctional Complex, 442 US 1 (1979) in that, to the extent Mr.
Szawara had scored a “high probability of parole” on the mandatory Michigan parole guidelines,
he had a limited liberty interest protected by the Due Process Clause of the United States
Constitution which could not be abrogated arbitrarily. Wolff v McDonnell, 418 US 539, at 555-
9
I. THE STATE OF MICHIGAN’S DENIAL OF PAROLE TO MR. SZAWARA
UNDER THE FACTS AND CIRCUMSTANCES OF THIS PARTICULAR CASE
CONSTITUTES A VIOLATION OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
The Fourteenth Amendment to the United States Constitution provides: “Section 1.…No
State shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life, liberty, or property, without
due process of law (emphasis added); nor deny to any person within its jurisdiction the equal
Mr. Szawara submits that the State of Michigan’s parole board decision in denying him
parole under the facts and circumstances of this particular case deprives him of liberty, and the
State did so without due process of law. He is thus being held in custody in violation of the
Fourteenth Amendment to the United States Constitution. A writ of habeas corpus pursuant to
We are not unmindful of rationales advanced in Michigan at the District level (Janiskee v
Gabry, 844 F Supp 1167 (ED Mich 1994)), and this Circuit (Sweeton v Brown, 27 F 3d 1162
(1994)(decided on Michigan parole statute prior to the institution of parole guidelines), that can
be broad brushed as “there is no liberty interest in parole.” We believe those instances were
Department of Corrections v Thompson, 490 US 454 (1989); Olim v Wakinekona, 461 US 238
(1983); Greenholtz v Inmates Of the Nebraska Penal And Correctional Complex, 442 US 1
(1979); Meachum v Fano, 427 US 215 (1976)), improper extensions of holdings narrower than
such rationales allow for, rendered in cases whose factual postures were distinguishably different
nothing protects or establishes any rights or privileges in an inmate to be released before the
10
expiration of a valid sentence. Meachum, supra; Greenholtz, supra. In other words, a prisoner
in a state which had no provision for parole release could not successfully maintain a
constitutional challenge for its absence based upon an asserted liberty interest under the
Fourteenth Amendment, for there simply is no liberty interest at stake other than the generalized
desire to be free from personal restraint. This remains the most fundamental and important
liberty interest assertable to be sure, but is the very one which has been constitutionally taken
away by the State as punishment for the criminal offense committed by the inmate, and, without
more, is not protected by the due process clause of the Constitution for the duration of the
confinement.
That said, it is equally clear that a prisoner does not forfeit the protection of the
Constitution in payment of his or her crime. Prisoners may not be deprived of life, liberty, or
property with due process of law. Haines v Kerner, 404 US 519 (1972); Wilwording v Swenson,
404 US 249 (1971); Screws v United States, 325 US 91 (1945). “But though his rights may be
diminished by the needs and exigencies of the institutional environments, a prisoner is not
wholly stripped of constitutional protections when he is imprisoned for a crime. There is no iron
curtain drawn between the Constitution and the prisons of this country.” Wolff v McDonnell, 418
Once the state establishes a system of parole, a due process liberty interest may ensue.
satisfactory behavior in prison, but the Supreme Court in Wolff recognized that the State of
Nebraska, by creating the system wherein prisoners were awarded time off their sentences for
good behavior gave the prisoner’s interest “real substance”. Id, at 557. To ensure the right was
not arbitrarily abrogated, the Court held that a spectrum of procedural protections was required
by due process. The State of Michigan has similarly created a parole system with, since 1994,
predicate parole guidelines which limit and constrain the exercise of discretion in parole
11
decisions by the Michigan Parole Board. A Michigan prisoner who scores a “high probability of
parole” on the guidelines now also has interest in parole containing “real substance.”
State law has created liberty interests in prison settings. (in parole, Board of Pardons v
Allen, 482 US 369 (1987); Greenholtz, supra; in good-time credits, Wolff, supra; in freedom
from involuntary transfer to a mental hospital, Vitek v Jones, 445 US 480 (1980); and in freedom
from more restrictive forms of confinement with the prison, Hewitt v Helms, 459 US 460 (1983))
The United States Supreme Court has not looked with favor upon prisoner claims that state law
has created a liberty interest in staying at any one particular prison. (intrastate transfer,
In Greenholtz, supra, a 1979 case in which the United States Supreme Court had
occasion to rule on a claim for damages under 42 USC §1983 by inmates of the Nebraska Penal
and Correctional Complex, prisoners alleged they had been denied due process in that they had
not been accorded the types of “conditional liberty” procedural guarantees3 the court had
previously recognized with respect to parole revocation hearings in Morrissey v Brewer, 408 US
471 (1972). While deciding the difference between the conditional liberty that one has (parole
status that is sought to be revoked) and the conditional liberty that one desires (the grant of
parole status) did not justify the full array of Morrissey procedural protections as a matter of
federal due process, some process was due under the circumstances. The Nebraska statute
provided the parole board “shall order” release unless one of four specified conditions were
found, and the United States Supreme Court stated that this “expectancy of release” was entitled
to due process protection. The Court held there was a liberty interest in parole despite the
necessarily subjective and predictive nature of the parole release decision, Greenholtz, at 12, but
3
Morrissey required the following procedures before parole could be revoked: (a) written notice of the claimed
violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and
to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’
hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a
written statement by the factfinders as to the evidence relied on and reasons for revoking parole, 408 US, at 489.
12
decided that the procedures already afforded to the inmates pursuant to the state statute was the
The Supreme Court in 1987 held another state’s statutory parole system (in this case,
Pardons v Allen, supra. In both Greenholtz and Board of Pardons v Allen the Court pointed to
the mandatory nature of the language4 of the parole statute as what gave rise to the “expectation
of parole” protected by the Due Process clause. Both statutes’ use of the word “shall” in
describing how parole decisions should be made “create[d] a presumption that parole release will
The Supreme Court decisions other cases that state statutes and regulations did not create
prison, Meachum, supra; prisoner attempting to prevent interstate transfer to another prison;
Olim, supra—reasoned that, once legally convicted, a prisoner’s liberty interest has been
sufficiently suspended so as to allow the State the power unfettered by the Fourteenth
Amendment to incarcerate that prisoner in any of its prisons it sees fit, for any constitutional5
reason it sees fit, or for no real reason whatsoever. “If the decisionmaker is not ‘required to base
its decisions on objective and defined criteria,’ but instead ‘can deny the requested relief for any
Dumschat, 452 US 458, 467 (1981), the State has not created a constitutionally protected liberty
4
At the time of the Board of Pardons v Allen decision, four justices felt a constitutionally protected liberty interest
in parole resulted from the very creation of a system of parole by the State regardless of the nature of the language
of the parole statute. POWELL, J.; MARSHALL, J.; BRENNAN J.; STEVENS, J. “[A]ll prisoners potentially
eligible for parole have a liberty interest of which they may not be deprived without due process, regardless of the
particular statutory language that implements the parole system”. See Footnote 3, Board of Pardons v Allen, supra,
at p 373.
5
One would surmise that the state could not, for example, put whites in one prison, blacks in another prison,
hispanics in another prison, etc. for constitutional reasons not owing to procedural due process.
13
In Kentucky Department of Corrections v Thompson, 490 US 454 (1989), Kentucky
prison inmates maintained via a class action suit for damages under 42 USC §1983 and alleged
that prison visiting regulations gave them a protected liberty interest in receiving certain visitors.
Leading to the litigation were two incidents wherein an inmate’s mother was denied from visiting
for 6 months because she was accompanied by a person who had been barred for smuggling
contraband, and where an inmate’s mother and girlfriend were denied visitation for a time
because the inmate was found with contraband after a visit by the two women. The visitation
privileges with respect to the visitors in these instances were suspended without a hearing; the
The Kentucky regulation in question provided a nonexhaustive list of the type of visitors
who could be excluded, and a similar nonexhaustive list of specific reasons6 for excluding
visitors. The visiting regulations in question did provide substantive predicates to guide
discretion, but they did not contain any mandatory language to limit discretion in any way. The
Court reasoned that visitors may be excluded on account of those reasons, but they were not
directed to be. The concurring opinion was careful to point out that the case involved specific
instances of denial of access to particular visitors, rather than regulations banning all prison
visitation or regulations permanently forbidding all visits to some or all prisoners. The Supreme
Court reiterated that “the use of ‘explicitly mandatory language’ in connection with the
establishment of ‘specified substantive predicates’ to limit discretion, forces a conclusion that the
State has created a liberty interest.” Id, at 463, citing Hewitt v Helms, supra, at 472.
The State of Michigan has created a system allowing for conditional release on parole,
MCL 791.231, et seq. A prisoner’s release on parole is discretionary with the parole board, MCL
791.234(9), however, Section 33e(1) of the Corrections Act additionally provides: “The
6
People with records of disruptive conduct, those refusing to submit to a search, or show
identification, those currently on probation or parole, those directly related to the inmate’s
criminal behavior, those under the influence of alcohol or drugs, etc.
14
department shall develop parole guidelines7 that are consistent with section 33(1)(a) and that
shall govern the exercise of the parole board’s discretion pursuant to sections 34 (MCL
791.234) and 35 (MCL 791.235) as to the release of prisoners on parole under this act.” MCL
791.233e(1.) The section permits parole guideline departures, but only for substantial and
Like the state parole systems in Greenholtz and Board of Pardons, the Michigan system
thus creates an expectation of parole for those inmates who score a “high probability of parole”
on the parole guidelines. Discretion of the parole board is clearly and succinctly constrained by
the mandatory language of the state statute—“the parole guidelines shall govern”. Prisoners
who achieve a “high probability” score may be denied parole only for “substantial and
compelling reasons stated in writing.” MCL 791.233e(6) If there were no liberty interest in
parole for those scoring “high probability” on the parole guidelines, parole could be denied for
any reason. Connecticut v Board of Pardons, supra, at 466-467. Such is not the case here;
parole cannot be denied for any reason, but only in the limited case of “substantial and
compelling” reasons. The State of Michigan has created a liberty interest in parole by its
statutory scheme.
The most fundamental tenet of due process is the protection of the individual against
arbitrary government action. Dent v West Virginia, 129 US 123 (1889). While cases such as
cited hereinabove generally concern complaints by prisoners regarding the lack of, or the
improper implementation of, appropriate procedures (notice, hearing, confrontation, etc.) whose
purpose would be to assist in preventing arbitrary government decisions, Mr. Szawara makes no
such due process attack on the procedural infrastructure utilized to make the parole decision in
7
The actual guidelines are found at 1996 MR 1, R 791.7716, and list 7 main factors—nature
of the offense; prior criminal record; conduct during confinement; placement on assaultive
and property risk screening scales; age; performance in institutional and community
programs including but not limited to work, school, and therapeutic programs; and mental
health—and 32 specific subfactors to score which shall govern the parole board’s decision.
15
his case, or in Michigan in general. The illegality complained of in the instant case is far more
basic.
Having served the minimum sentence pursuant to MCL 791.233(1)(b), and having
provided the board with satisfactory evidence that arrangements had been made for suitable
employment pursuant to MCL 791.233(1)(d) (PER, p 2), and having achieved a score of +7 on
the parole guidelines yielding the statutorily designated category of “high probability” of parole,
We submit that the denial of parole as limited to the facts of Mr. Szawara’s case
arbitrary, capricious, and fundamentally unfair decision under the circumstances. It contravenes
the due process clause as an abuse of discretion conferred to the parole board by the Legislature,
the discretion also limited by that same Legislature through the mandatory application of the
guidelines, and as such, is repugnant to due process of law, and must be vacated.
Not only does the United States Supreme Court case of Meachum recognize such a basic,
limited liberty interest may be created by state law, but that the analysis was consistent with the
Court’s approach in other due process cases like Goss v Lopez, 419 US 565 (1975); Board of
Regents v Roth, 408 US 564 (1972), Perry v Sindermann, 408 US 593 (1972); Goldberg v Kelly,
397 US 254 (1970). The liberty interest itself was indeed recognized in the Nebraska statutory
16
scheme in Greenholtz and in the Montana scheme in Board of Pardons v Allen though the
question of what limited procedures were necessary to protect that liberty interest was at issue
rather than the result in any individual inmate’s case as it is here. The denial to Mr. Szawara was
Irrespective of his “high probability” of parole on the mandatory guidelines, and also
irrespective of his institutional record as noted above, the parole board denied parole to Mr.
Szawara, and cited as “substantial and compelling” reasons (1) “P’s evasiveness and minimizing
when asked about the crime”, and (2) his “use of the Internet”. In a section entitled Reasons In
Support Of Parole Board Action, the board cited Mr. Szawara’s current sentence was for a CSC
crime, and that the crime was sexually motivated in that it involved the solicitation of a minor
We also submit that it is clear that Mr. Szawara was denied parole, against the tide of
what was a rather overwhelming record suggesting parole was appropriate, simply because the
board summarily viewed his offense as a Criminal Sexual Conduct (“CSC”) crime involving a
“minor”, when in effect neither is accurate. For the purposes of the a CSC criminal offense, a
seventeen year old female is not a “minor”, that is, she is perfectly capable from a legal
standpoint of consenting to sexual relations. MCL 750.520a, et seq. (unless they are with a
teacher or administrator in a school setting, 2002 PA 714) Secondly, Child Sexually Abusive
Activity or Material, MCL 750.145c(2), is simply not a CSC offense. The inaccuracy is
significant in that the Michigan Parole Board, in most cases, declines to parole a CSC offender at
When confronted by counsel with this error via a July 12, 2004 letter asking the Michigan
Parole Board to reconsider its decision, the Board responded in form-letter format, stating that it
considers various factors in deciding whether to grant parole. When questioned again (Letter of
February 11, 2005, essentially a paraphrasing of counsel’s letter of July 12, 2004) by a prison
17
advocacy firm hired by Mr. Szawara, the department manager from the Parole Board, David
Kleinhardt, in a letter dated March 14, 2005, agreed that this was not a CSC offense, but was
“unable to conclude this was not an assaultive offense”. A corrected Parole Board Notice of
Decision was issued, but the Board failed to reconsider its action.
It is fairly clear to one who takes an opportunity to take a close look at the record, and the
known facts of the incident, that no sexual assault occurred. Initially, it should be remembered
that the crime to which Mr. Szawara plead did not have any component of sexual assault to it;
rather, he plead guilty to taking an erotic photograph of a seventeen year old girl. While not
illegal to have consensual sex with such a female, it is illegal to photograph her nude, a seeming
anomaly in the criminal code. The next layer to consider is that the sentencing judge did not
score any points on Michigan’s mandatory legislature sentencing guidelines for either criminal
sexual penetrations (OV 11), nor for contemporaneous felonious criminal acts (OV 12). Third,
the Kent County Prosecutor’s office decided not to bring any sexual assault charges even though
the victim eventually maintained she was sexually assaulted. Mr. Szawara has been adamant
both with the trial court at sentencing, and with the appellate courts by way of affidavit that all
sexual contact with the victim was with her consent. Finally, a review of the victim’s initial
written statement to the police seems to corroborate all of the above. (See Exhibit 2) (The
victim initially wrote that all contact was consensual, that her only concern was that the sex be
protected by the use of a prophylactic, and that she consented to the taking of her picture. When
sentencing was ultimately held, she maintained she had been raped, and asked for the maximum
possible sentence.) Certainly none of those factors in and of themselves are binding on the
Parole Board; however, when one considers them in totality, it seems solidly against the weight
of good judgment to conclude anything other than that all sexual activity was consensual.
Further buttressing that conclusion are elements of the presentence report that the parole
board chose not to cite—“Detective McCarthy indicated that it was clear from his investigation
18
that the complainant did meet the defendant for the purposes of having sexual relations.” “There
was no evidence of any child pornography found on Mr. Szawara’s computer.” (Exhibit 1, PSI, p
1) “he (Detective McCarthy) would hate to see the defendant receive a prison sentence but does
That is not to say what Mr. Szawara did was acceptable; just that it was not sexually
assaultive. While it may not be healthy or normal for an older adult to be seeking youngish
women to have relations with, and indeed may be deleterious to the well being of the young
woman, had Mr. Szawara not taken the victim’s picture, the entire incident would have in no way
been illegal. In fact, the illegality itself is but an afterthought on the part of the victim in her
original statement, an asterisk, “*while I was naked he got a camera and said, let me take some
pictures of you, so he took 3, two of me full bodied and naked, and one of my vaginal are(a).”
Later in the statement she relates, “I said I had to leave, he asked me to let him take 1 more
picture, so I let him, we said goodbye, he kissed me again, and I left.” (See Exhibit 2)
In order to extinguish Mr. Szawara’s expectation of parole, namely, his +7 score on the
parole guidelines giving him the “high probability” category, the Parole Board cited “P’s
evasiveness and minimizing when asked about the crime” and the “use of the internet” as
“substantial and compelling reasons” for guideline departure. The meaning of “substantial and
compelling” in the parole context is not well-defined in Michigan case law, yet analogies have
been made when construing “substantial and compelling” reasons to depart from the Michigan
sentencing guidelines under the criminal code to “substantial and compelling” reasons necessary
to depart from minimum sentences under the public health code. In People v Fields, 448 Mich
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defines “compelling,” in relevant part, as, “irresistibly or keenly interesting,
attractive, etc.; captivating…”
The Michigan Court of Appeals had previously held that such factors constituting
“substantial and compelling” reasons must be objectively verifiable, and the Fields court also
accepted that rule as the law, an accurate expression of Legislative intent. Id, at 68. The same is
true in the area of parole appeals. The case of In re Parole of Johnson, 219 Mich App 595 (1996)
reasoned that where the parole decision was based not on objective criteria but on the subjective
feelings of a parole board member, contrasted with the objective criteria provided by the parole
guidelines prepared weeks earlier which yielded the opposite result, the decision was not
supported in the record and should be vacated. The Court stated “Clearly, this is precisely the
situation the Legislature intended to eliminate by imposing guidelines on the exercise of the
This is also precisely the situation in the case at bar. Mere weeks before he was
interviewed, the objective, mandatory parole guidelines established by the Michigan Legislature
gave Mr. Szawara a presumptive expectation of parole. After the interview, a parole board
member subjectively felt that Mr. Szawara was “minimizing” and “evasive” when asked about
the crime. These are entirely subjective characterizations, made in the face of the entirely
positive and objective institutional record to the contrary. (It is difficult to imagine a less
invasive sexual criminal incident; only if one accepted wholesale the victim’s eventual allegation
of “rape” despite the record to the contrary does this make logical sense.) Are these reasons
“substantial and compelling” and objective per Fields, or are they clearly subjective, suspect, and
abusive of the discretion granted to the parole board to be asserted? We submit the latter. Is Mr.
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Szawara to be denied parole because he “used the internet”? (not to commit the crime, but to
talk with females past the age of consent) If so, it is akin to denying parole to a prisoner in the
early part of the last century because he “used the telephone.” Are people particularly dangerous
simply because they avail themselves of today’s technology? And having done so, are they
beyond redemption? These reasons can hardly be asserted to be “substantial and compelling”;
rather, they are an abuse of the process and the power that was delegated. The Fourteenth
Amendment protects Mr. Szawara’s expectation of parole created by the mandatory guidelines
Surely, if Mr. Szawara had been denied parole because he was an Ohio State Buckeye
fan, and the parole board was inclined to be composed of University of Michigan fans, the
presumptive expectation of high probability of parole could not have constitutionally been
extinguished thereby.8 It would be an egregious abuse of discretion. What would have happened
if, two weeks prior to the parole interview, there had been a telephone call to the parole board
which in essence conveyed to the Board that Mr. Szawara, at about the time he was arrested on
the within charge, had tried to have forced sex with a 13 year old girl, and the Board stated, “you
are denied parole because we chose to believe the caller, and we are not reasonably assured of
The analogy to the instant situation is this—the Board chose to focus on the bald
allegation contained in the presentence report (as by law it must be) by the victim that she was
“raped” (see Parole Board Department Manager Kleinhardt’s letter of March 14, 2005, “I am
unable to conclude this was not an assaultive offense”), and thus subjectively concludes that Mr.
professionals who administered the Sexual Offender Therapy program successfully completed by
8
Query: If there was no such liberty interest to protect, no mandatory parole guidelines, i.e. if parole could be
denied for any reason, would such patently absurd reasoning withstand a due process constitutional attack? A
minority on the United States Supreme Court, as indicated in footnote 4 would say no, but evidently a majority of
the present justices would uphold such reasoning because there would be no protectable liberty interest at stake.
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Mr. Szawara.9 This bald allegation is not acted upon by the prosecutor’s office, is not mentioned
in any way in the initial statement the victim gave to the police, is contradicted by the
investigating detective in that same presentence report (clearly went to meet Mr. Szawara for the
purpose of consensual sexual relations), and is not scored any sentencing guideline points or
recognized in any fashion by the sentencing judge. In sum, this allegation is exactly that—bald,
if not inherently contradicted in the record available to the Parole Board. To effectively simply
say, “we choose to believe the allegation”10 despite all factors pointing to the contrary, and to use
that belief to extinguish what is a presumptive expectation of parole, one based on verifiable,
objective reasons as set forth by the Michigan Legislature, surely constitutes an abuse of
discretion so given and limited by that Legislature, and violates the due process clause of the
and without this district have recognized that even in such a case “where a state prisoner is not
entitled to mandatory parole, a federal district court, upon a habeas petition, reviews a parole
board’s decision for an abuse of discretion, asking whether the board’s action resulted in an
9
In point of fact, the mental health professional who prepared the Therapy Termination
Report (Exhibit ____, p 2) after 44 sessions with Mr. Szawara, and who scored his progress on
28 separate variables as either “Excellent” or “Good”, fully accepted the rendition of the
facts set forth by everybody but the victim as she prepared her victim impact statement for
sentencing—“His victim was a 17 year old female whom he met over the internet. They met
at a motel to have sex. He admitted taking digital pictures of her naked and then engaging
in brief sexual intercourse”…“He demonstrated positive progress on all of the SOP group
goals: develop a clear understanding of his responsibility for setting up and committing his
sex offense; examine his offense cycle, deviancy, thinking beliefs, feelings, self-concept and
behavior that led to his sexual offense; develop and demonstrate victim empathy; to
honestly self-disclose to the group about his deviant sexual behavior; examine his sexuality,
morals, values, social and sexual relationships; develop a practical relapse prevention plan;
and learn self-control skills to shut down his deviant arousal pattern.” This sounds nothing
like the person subjectively described after one interview by the parole board member who
accepted the dubious description of events as told by the victim prior to sentencing.
10
Also noteworthy is that Mr. Szawara was scored a -5 on mental health variables in the
parole guidelines themselves pursuant to R 791.7716(g), which can only be because his
“mental health would be reflected by the following: (ii) a history of physical or sexual assault
related to a compulsive, deviant, or psychotic mental state.” The scoring of this variable is
questionable given the consensual nature of any sexual relations between Mr. Szawara and
the victim; nevertheless, even with these points deducted, Mr. Szawara’s other objectively
verifiable criteria for parole pursuant to the guidelines are so strong so as put him in the
“high probability of parole” category.
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abridgement of a prisoner’s constitutional rights.” Wildermuth v Furlong, 147 F3d, 1234, 1236
(10th Cir 1998) See also Boddie v New York State Division of Parole, 285 F Supp 2d 421 (2003),
Lee v Withrow, 76 F Supp 2d 789 (ED Mich 1999) (Duggan, J.). The quoted language was also
cited as the appropriate test should there be some constitutional process due in Clark v Carr,
The Michigan Parole Board accepted as accurate facts and circumstances not with respect
to the crime, but rather to facts and circumstances surrounding the commission of the crime,
where those facts and circumstances would, if believed, constitute a much more serious crime
than the crime of conviction. It did so in the face of all objective evidence to the contrary. By so
accepting wholesale the bald assertions of the victim in the presentence report, and by allowing
that to subjectively color its assessment of whether Mr. Szawara will become a menace to society
or to the public safety, and by allowing that to override the objective substantive predicates
promulgated by the Legislature in the form of the mandatory parole guidelines which indicate the
contrary; the decision of the Michigan Parole Board, in this particular case and limited to these
particular circumstances, violated the Due Process Clause of the Fourteenth Amendment to the
United States Constitution and Mr. Szawara is being held in custody in violation thereof.
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RELIEF REQUESTED
b. Require the Respondent to answer the allegation in this Petition and Brief In
Support;
c. Hold such evidentiary hearings as the Court may deem necessary or appropriate;
confinement in violation of the Due Process Clause of the United States Constitution.
Respectfully submitted,
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