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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN


NORTHERN DIVISION
_________________________

THOMAS ALLEN SZAWARA, File No.

Petitioner, Hon.

MICHIGAN PAROLE BOARD,

Respondent.
__________________________________/

Attorney for Petitioner

MICHIGAN ATTORNEY GENERAL


Attorney for Respondent
Office of the Michigan Attorney General
Habeas Corpus Division
P.O. Box 30217
Lansing, MI 48909
__________________________________/

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

STATEMENT OF QUESTIONS PRESENTED FOR REVIEW………………………….....….vi

STATEMENT OF MATERIAL PROCEEDINGS AND FACTS……………………..…………1

A. CHARGE, CONVICTION, AND SENTENCE………………………………..…1


B. APPELLATE PROCEEDINGS…………………………………..…..……….….2
C. PRISON BEHAVIOR AND MICHIGAN PAROLE
BOARD DECISIONS……………………………………………………...…..3

LAW AND ARGUMENT…………………………………………………..……………….……7

State judicial review of parole decisions in Michigan………………………….....7


Exhaustion…………………………………………………………………………7
Jurisdiction………………………………………………………………….…….8
Standard of Review……………………………………………………..…………8

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………………………..………..10

RELIEF REQUESTED ………………………………………………………………..…..…….24

i
LIST OF EXHIBITS

1. July 30, 2002 Presentence Investigation Report

2. January 5, 2002 written statement by victim

3. August 19, 2002 Sentencing Transcript

4. August 19, 2002 Judgment of Sentence

5. January 13, 2004 Parole Eligibility Report

6. September, 2003 Block Report

7. January 30, 2004 Therapy Termination Report

8. April 21, 2004 Notice of Intent to Conduct Parole Board Interview

9. April 1, 2004 Parole Guidelines Scoresheet

10. Administrative Rule 791.7716

11. June 15, 2004 Parole Board Notice of Decision

12. July 12, 2004 letter from counsel to Parole Board

13. July 21, 2004 letter from Parole Board to counsel

14. February 11, 2005 letter from prison advocacy group to Parole Board

15. March 14, 2005 letter from Parole Board to prison advocacy group

16. March 21, 2005 Amended Parole Board Notice of Decision

ii
INDEX OF AUTHORITIES

Page
Federal cases

Barclay v Renico, 2002 WL 1303038 (ED Mich)………………………………..………..8

Board of Pardons v Allen, 482 US 369 (1987)………………………………..……9,12,13

Board of Regents v Roth, 408 US 564 (1972)………………………………………..…..17

Boddie v New York State Division of Parole, 285 F Supp 2d 421 (2003)……….………23

Canales v Gabry, 844 F Supp 1167 (ED Mich 1994)……………………………..……..10

Chambers v United States, 106 F 3d 472 (2d Cir 1997)………………………………….8

Connecticut Board of Pardons v Dumschat, 452 US 458 (1981)……………..........9,13,15

Dent v West Virginia, 129 US 123 (1889)......................................................................9,15

Felker v Turpin, 518 US 651 (1996)………………………………………………………8

Goldberg v Kelly, 397 US 254 (1970)……………………………….......………………17

Goss v Lopez, 419 US 565 (1975)………………………………………………………..16

Greenholtz v Inmates Of the Nebraska Penal And Correctional Complex,


442 US 1 (1979)……………………………….……………………..9,10,11,12,13

Haines v Kerner, 404 US 519 (1972)………………………………………...…………..11

Hewitt v Helms, 459 US 460 (1983)…………………………………...……………..12,14

In Re Slatton, 165 F 3d 28, 1998 WL 661148 (unpublished, 6th Cir 1998)………….……8

Janiskee v Michigan Department of Corrections, 932 F 2d 968


(unpublished, WD Mich 1991)……………………………………………….…..10

Johnson v Tyszkiewicz, 2001 WL 278172 (ED Mich)…………………………….……….8

Kentucky Department of Corrections v Thompson, 490 US 454 (1989)…….……..9,10,14

Lee v Withrow, 76 F Supp 2d 789 (ED Mich 1999)……………………...………………23

Long v Commonwealth of Kentucky, 80 Fed Appx 410, 2003 WL 22000286


(unpublished, 6th Cir 2003)…………………………………….………………….8

Meachum v Fano, 427 US 215 (1976)………………………...……………10,11,12,13,16


iii
Morrissey v Brewer, 408 US 471 (1972)……………………….………………………..12

Olim v Wakinekona, 461 US 238 (1983)………………….…………………9,10,12,13,14

O’Sullivan v Boerckel, 526 US 838 (1999)………………………………….…………….7

Perry v Sindermann, 408 US 593 (1972)………………………………….……………..17

Screws v United States, 325 US 91 (1945)………………………………………………11

Sweeton v Brown, 27 F 3d 1162 (1994)………………….………………………………10

United States v Jalili, 925 F 2d 889 (6th Cir 1991)……………….……………………….8

United States v Tubwell, 37 F 3d 175 (5th Cir 1994)…………………………..………….8

Vitek v Jones, 445 US 480 (1980)………………………………………………………..12

Walker v O’Brien, 216 F 3d 626 (7th Cir 2000)…………………………….……………..8

Wildermuth v Furlong, 147 F3d, 1234 (10th Cir 1998)………………………………….22

Wilwording v Swenson, 404 US 249 (1971)…………………………….……………….11

Wolff v McDonnell, 418 US 539 (1974)…………………………………………….9,11,12

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

Hicks v Parole Board, 2001 WL 792153 (Mich App)…………………..…………..……..4

Hopkins v Parole Bd, 237 Mich App 629 (1999)………………………………………….7

In re Parole of Johnson, 219 Mich App 595 (1996)……………………………………..20


iv
Morales v Michigan Parole Board, 260 Mich App 29 (2004); lv den
470 Mich 885 (6/30/04)……………………………………………………….…..7

People v Fields, 448 Mich 58 (1996)……………………………………………...….19,20

Michigan Statutes and Regulations

MCL 8.3a…………………………………………………………………….…………..19

MCL 750.145c(2).....................................................................................................…...1,17

MCL 750.520a, et seq……………………………………………………………..……..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

Michigan Administrative Rule 791.7716(3)(g)....................................………….........…...4

v
STATEMENT OF QUESTIONS PRESENTED FOR REVIEW

I. WHETHER 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?

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

sentence of two to twenty years imprisonment.

A. CHARGE, CONVICTION, AND SENTENCE

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

camera to photograph a nude Ms. Ware lying on a bed.

The Kent County Department of Corrections prepared a Presentence Investigation Report

(PSI) and recommended that the Court sentence Mr. Szawara to “serve a period of incarceration

with the Michigan Department of Corrections” because “the Michigan Department of

Corrections PSI recommendation guidelines form mandates that this writer make a

recommendation of incarceration with the Michigan Department of Corrections…” See PSI,

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

convicted of any criminal offense, felony or misdemeanor.

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

relations only. The statement is attached hereto as Exhibit 2.

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

to a member of victim’s family), 8 (victim asportation or captivity), and 11 (criminal sexual

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

judgment of sentencing is attached hereto as Exhibit 4.

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.

C. PRISON BEHAVIOR AND MICHIGAN PAROLE BOARD DECISIONS

The Michigan Department of Corrections (MDOC) correctly calculated Mr. Szawara’s

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

institutional programs recommended by the MDOC. In conclusion, Mr. Szawara’s PER

contained not a single negative comment or remark; nor did it allege that he had not fulfilled any

programming recommended or required by the MDOC.

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

was self-destructive in his life and relationships.”

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

which is attached hereto as Exhibit 10.

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

Board stated in it’s Notice of Decision that:

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

a computer for the purpose of solicitation” and “involved minor/child victim.”

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

menace to society or a risk to the public safety if paroled.

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

assaultive offense because:

“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 judicial review of parole decisions in Michigan.

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

guarantees of both state and federal constitutions.

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

Mich); Johnson v Tyszkiewicz, 2001 WL 278172 (ED Mich).

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,

216 F 3d 626, 632-633 (7th Cir 2000).


8
For the purposes of this action, to err on the side of caution, we will assume that AEDPA

does apply, and that:

(d) An application for a writ of habeas corpus on behalf of a person in custody


pursuant to the judgment of a State court shall not be granted with respect to any claim
that was adjudicated on the merits in State court proceedings unless the adjudication of
the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a


person in custody pursuant to the judgment of a State court, a determination of a factual
issue made by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing evidence.

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-

556 (1974); Dent v West Virginia, 129 US 123 (1889).

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

protection of the laws.”

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

28 USC §2241 should issue.

We are not unmindful of rationales advanced in Michigan at the District level (Janiskee v

Michigan Department of Corrections, 932 F 2d 968 (unpublished, WD Mich 1991); Canales 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

tantamount to overly expansive interpretations of existing Supreme Court precedent (Kentucky

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

from that presented herein.

It is clear there is no inherent right to parole. As a matter of constitutional import,

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

US 539, at 555-556 (1974).

Once the state establishes a system of parole, a due process liberty interest may ensue.

There is likewise no inherent or constitutional right to be guaranteed good-time credit for

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,

Meachum, supra; interstate transfer, Olim, supra)

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

constitutional process that was due.

The Supreme Court in 1987 held another state’s statutory parole system (in this case,

Montana, similar in language to Nebraska’s) created a protected liberty interest in Board of

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

be granted” when designated findings were made.

The Supreme Court decisions other cases that state statutes and regulations did not create

a due process liberty interest—prisoner attempting to prevent instrastate transfer to another

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

constitutionally permissible reason or for no reason at all,’ Connecticut Board of Pardons v

Dumschat, 452 US 458, 467 (1981), the State has not created a constitutionally protected liberty

interest.” Olim, supra, at 249, citing Brennan’s concurring opinion in Connecticut.

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

inmates were not precluded from receiving other visitors.

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

compelling reasons stated in writing. MCL 791.233e(6).

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,

Mr. Szawara was denied parole despite the following:

a. no major misconduct violations


b. “excellent” institutional adjustment
c. “excellent” work assignment reports
d. completed small business classes
e. completed Sex Offender Therapy and all other institutional programs
recommended by MDOC
f. 9/9/03 Block Report: Quiet on unit, polite to staff, no problems
g. Educational Program Plans forms dated 3/20/03, 6/25/03, 9/25/03: “Excellent”
h. 1/30/04 Sex Offender Program Termination Report: all performances graded
“excellent” or “good”, and that Mr. Szawara “displayed full responsibility and
accountability for his instant offense and other behavior that was self-destructive
in his life and relationships.”
i. “high probability” of parole pursuant to parole guidelines.

We submit that the denial of parole as limited to the facts of Mr. Szawara’s case

constitutes an unconstitutional contravention of due process of law in that it was clearly an

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

egregious, arbitrary, capricious, and cannot withstand due process scrutiny.

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

child via computer.

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

his earliest parole date.

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

believe that he is deserving of some form of punishment.”

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

58, at 66 (1996), the Michigan Supreme Court stated:

Statutes should be interpreted according to the common and approved


usage of any undefined words within them. MCL §8.3a; MSA §2.212(1).
Webster’s New World Dictionary Third College Edition defines “substantial,” in
relevant part, as “2 real; actual; true; not imaginary 3 strong; solid; firm; stout 4
considerable; ample; large 5 of considerable worth or value; important…” It

19
defines “compelling,” in relevant part, as, “irresistibly or keenly interesting,
attractive, etc.; captivating…”

From these definitions it is evident that the words “substantial and


compelling” constitute strong language. The Legislature did not wish that trial
judges be able to deviate from the statutory minimum sentences for any reason.
Instead, the reasons justifying departure should “keenly” or “irresistibly” grab our
attention, and we should recognize them as being “of considerable worth” in
deciding the length of a sentence.

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

Parole Board’s discretion.” Id, at p 602.

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.

20
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

against such an abuse of discretion.

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 public safety”?

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.

Szawara is “minimizing” or “evasive”, although no such observation is made by the

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.

21
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

United States Constitution.

Although, as stated hereinabove, there is no constitutional right to parole, courts within

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.

22
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,

2002 WL 1880469 (ED Mich 2002) (Friedman, J.)

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.

23
RELIEF REQUESTED

WHEREFORE, Petitioner Thomas Allen Szawara moves this Honorable Court to

grant the following relief:

a. Accept Jurisdiction over this case;

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;

d. Issue a Writ of Habeas Corpus freeing Petitioner from his unconstitutional

confinement in violation of the Due Process Clause of the United States Constitution.

e. Admit Petitioner to bail pending this Honorable Court’s decision because

Petitioner presents a substantial question as to the constitutionality of his detention.

Respectfully submitted,

DATED: June 13, 2005 _________________________________

Attorney for Petitioner

24