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UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
MICHAEL BICKLEY, Petitioner-Appellant,
v.
STEPHEN H. MARSCKE, et al., Respondents-Appellees.
No. 01-1835
August 13, 2002, Filed
NOTICE:
NOT
RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION
TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN
A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES
AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS
REPRODUCED.
Before: KENNEDY, SUHRHEINRICH, and BATCHELDER, Circuit Judges.
Michael Bickley appeals a district court judgment that dismissed his
petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. This case
has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of
the Sixth Circuit. Upon examination, this panel unanimously agrees that oral
argument is not needed. Fed. R. App. P. 34(a).
Bickley filed the instant
federal habeas corpus petition alleging that he was denied due process, a
liberty interest, and equal protection in his state parole proceedings. After
the state filed its answer, the district court dismissed the petition as
meritless, and Bickley filed a timely notice of appeal. The district court
granted Bickley a certificate of appealability only with respect to his claim
that he was denied equal protection because, under a newly enacted Michigan
statute, he is not entitled to appeal the parole decision, while an aggrieved
crime victim or a state prosecutor is permitted to appeal a grant of parole
under state law. Bickley v.
Mich. Dep't of Corr., 2001 U.S. Dist. LEXIS 11689, No. 00-72479, 2001 WL 902495
(E.D. Mich. July 10, 2001). This court denied Bickley a certificate of
appealability with respect to his remaining claims.
On appeal, Bickley reiterates
his claim that the Michigan parole scheme violates the Equal Protection Clause
because it affords prosecutors and crime victims the right to appeal an adverse
parole decision, but does not afford an aggrieved prisoner the same right. The
state responds that: (1) Bickley has not exhausted state remedies regarding his
claim; (2) equal protection is not implicated because prisoners are not
similarly situated with prosecutors and victims; and (3) a rational basis
exists for the scheme in any event. Upon consideration, we will affirm the
judgment for reasons other than those stated by the district court.
See Russ' Kwik Car Wash, Inc. v.
Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir. 1985).
This court need not reach the
merits of petitioner's equal protection claim because the new Michigan statute
at issue did not affect petitioner's right to appeal his adverse parole
decision. The record reflects that Bickley currently is serving
consecutive terms of imprisonment of fifteen to thirty years and two years for
his 1984 [*700] convictions for assault with intent to murder and felony firearm. On December 13, 1999,
the Michigan Parole Board denied Bickley parole in a decision mailed December
20, 1999. At that time, petitioner had the right to appeal the decision within
28 days of the mailing date. Cf. MCR 7.104(D). Petitioner sought reconsideration
of the parole decision by letter dated December 27, 1999, and reconsideration
was denied on January 20, 2000. Although Michigan law was amended to eliminate a prisoner's right to
appeal a decision of the Michigan Parole Board to deny parole pursuant to Mich.
Comp. Laws § 791.234, that amendment did not take effect until March 10, 2000.
See Matson v. Mich. Parole Bd., 175
F. Supp. 2d. 925, 929 (E.D. Mich. 2001). In fact, the record reflects that petitioner made efforts to
seek judicial review of the parole board's decision. The record does not
reflect that judicial review was denied because petitioner no longer had the
right to appeal the parole board's decision under the new statute. Under these
circumstances, petitioner was not denied equal protection because he was not
adversely affected by the new statute. Therefore, this court need not address
the issue of whether the statute violates equal protection. Accordingly, the
district court's judgment will be affirmed on this basis. Nonetheless, it is
noted that, after the judgment on appeal herein was entered the Michigan
district court in Matson concluded that Michigan prisoners may be able to seek
state judicial review of an adverse parole decision under Michigan's Revised
Judicature Act. See 175 F. Supp. at 929-30.
For the foregoing reasons, the district court's judgment is
affirmed. See Rule 34(j)(2)(C), Rules of the Sixth Circuit.