Townsend v. Vasbinder

365 F. App'x 657
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 18, 2010
DocketNo. 08-1726
StatusPublished
Cited by3 cases

This text of 365 F. App'x 657 (Townsend v. Vasbinder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Townsend v. Vasbinder, 365 F. App'x 657 (6th Cir. 2010).

Opinion

ROGERS, Circuit Judge.

Robert Townsend appeals the district court’s denial of his petition for the writ of habeas corpus. Townsend alleges, as the constitutional bases for his habeas petition, that the Michigan Parole Board’s retroactive application of changes to its policies and procedures violates the Ex Post Facto and Due Process Clauses. In his initial brief on appeal, Townsend argues that the “appropriate remedy” in this habeas case “is either (1) an evidentiary hearing to determine whether immediate release is appropriate, or (2) resentencing with the opportunity to seek a sentence of a definite term of years corresponding with the original intent of the sentencing judge.” However, Townsend was released on parole during the pendency of this appeal. After his release on parole, Townsend submitted a reply brief in which he seeks different relief: namely, he asks this court to order an evidentiary hearing so he can show that, in light of “past parole practices and his institutional record,” he probably “would have been paroled many years ago.” Townsend explains “that if he had been paroled many years ago, he likely would not have violated his parole” and, therefore, he already would have completed successfully his four-year term of parole.

Because Townsend’s release on parole renders irrelevant his request for an evi-dentiary hearing to determine whether his immediate release is appropriate, and because Townsend cannot revise his request for relief in his reply brief to avoid dismissal, Townsend’s appeal is moot with regard to his request for an evidentiary hearing. To the extent that Townsend seeks only resentencing in his habeas petition, filed pro se, and to the extent that Townsend’s release on parole did not render moot this request, Townsend points to no authority to support his claim that he is entitled to resentencing. Finally, in light of this court’s reversal of the summary judgment for plaintiffs in Foster Bey v. Rubitschun, No. 05-71318, 2008 WL 7020690 (E.D.Mich. Oct.23, 2008), rev’d sub nom. Foster v. Booker, 595 F.3d 353 (6th Cir.2010), there is no constitutional violation to justify granting Townsend the relief he seeks in his habeas petition. Accordingly, Townsend’s appeal is dismissed.

Townsend was convicted by a Michigan jury of second degree murder on June 6, 1968. Approximately two weeks later, Jackson County Circuit Court Judge Gordon W. Britten sentenced Townsend to life in prison with the possibility of parole. Townsend challenged his conviction on direct appeal and in federal collateral proceedings without success.

Under Michigan law, an individual sentenced to “parolable life” for an offense committed before October 1, 1992, comes within the jurisdiction of the Parole Board after serving ten calendar years of the life sentence. Mich. Comp. Laws § 791.234(7)(a). Although Townsend was reviewed for parole, decades passed without his release. In 2003, Townsend filed a motion for relief from judgment in the Jackson County Circuit Court, apparently alleging that the Parole Board had violated his constitutional rights and seeking resen-tencing.1 The circuit court denied Townsend’s motion for relief from judgment, People v. Townsend, No. X6-430-67 (Mich. Cir.Ct. Sept. 8, 2003), and then denied his motion for reconsideration, People v. Townsend, No. X6-430-67 (Mich.Cir.Ct. Sept. 22, 2003). The Court of Appeals denied Townsend’s application for leave to appeal the circuit court’s decision, People v. Townsend, No. 251336 (Mich.Ct.App. Mar. 11, 2004), as did the Michigan Supreme Court, People v. Townsend, No. [659]*659125961, 689 N.W.2d 230 (Mich. Nov.29, 2004).

A short time later, on December 10, 2004, Townsend filed a petition for the writ of habeas corpus pro se in the United States District Court for the Eastern District of Michigan. Townsend’s brief in support of his habeas petition alleges that the Parole Board violated the Ex Post Facto and Due Process Clauses by retroactively applying changes to Parole Board policies and procedures — changes made after he committed his offense — to his parole review. Townsend’s brief further alleges that, as a result of the changes, his parola-ble life sentence is now “the functional equivalent” of a mandatory life sentence (a sentence imposed upon conviction of first degree murder under Michigan law) because the Parole Board no longer exercises its discretion meaningfully on a case-by-case basis. Townsend submitted various correspondence and other documents in support of his habeas petition, including an affidavit sworn out by Judge Britten on July 18, 2002. In this affidavit, Judge Britten states that, had he known the Parole Board’s exercise of its discretion would change over time, he “would have sentenced [Townsend] to a term of years,” rather than parolable life, “and [Townsend] would now be free and no longer a burden upon the tax-payers.” Townsend’s brief in support of his habeas petition concludes that resentencing is the only available remedy for the Parole Board’s alleged constitutional violations.

After Townsend filed his habeas petition, a group of Michigan Department of Corrections inmates serving parolable life sentences for offenses committed before October 1, 1992, filed a class-action complaint in the United States District Court for the Eastern District of Michigan pursuant to 42 U.S.C. § 1983. See Foster Bey, 2008 WL 7020690, at *1-2. The Foster plaintiffs allege that post-1992 changes to the Parole Board’s policies and procedures violate the Ex Post Facto and Due Process Clauses when applied retroactively. See id. Townsend is a member of the Foster plaintiff class. On October 23, 2007, the Foster district court granted the plaintiffs’ motion for summary judgment on their ex post facto claim. Id. at *23. The Foster district court entered a remedial order on February 7, 2008, that required the Parole Board to provide “prompt personal parole review of the plaintiff class, subject to the laws, policies, procedures, and applying the standards, that were the norm for the decades before 1992.” Foster-Bey v. Rubitschun, No. 05-71318, slip op. at 2 (E.D.Mich. Feb. 7, 2008) (“Decl’y J. and First Remedial Inj. Order”).

The district court considering Townsend’s habeas petition dismissed his ex post facto and due process claims on December 19, 2007, because those claims were “duplicative of and ha[d] been subsumed by the claims asserted in the class action.” Townsend v. Vasbinder, No. 04-CV-74846, 2007 WL 4557715, at *3-4 (E.D.Mich. Dec.19, 2007). Although Townsend’s request for resentencing was not subsumed by the class action, the district court required Townsend to show cause why that claim should not be denied. Id. at *4-6. For purposes of further analysis of Townsend’s resentencing claim, the district court “assume[d] the correctness” of the Foster district court’s conclusion that the Parole Board had violated the Ex Post Facto Clause. Id. at *4.

The district court ultimately denied Townsend’s habeas petition on April 30, 2008, because Townsend had not shown “that the state court’s decision that his rights under the Constitution were not violated by the parole board’s failure to release him on parole was contrary to or an unreasonable application of Supreme Court precedent.” 2

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365 F. App'x 657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsend-v-vasbinder-ca6-2010.