Patrick Kenney was on probation for a drug possession charge when he was again caught possessing drugs. On April 2, 2002, he was sentenced to 18 months to 15 years in prison, plus a concurrent one- to 15-year term for the new drug charge. Kenney was paroled on October 4, 2005, and was scheduled to be discharged from parole on August 3, 2008.
But in early 2008, Kenney was caught driving around in his mother’s Mercedes with his friend and roommate, John Cook, a known drug dealer – and with a firearm and ammunition in the engine compartment. Kenney apparently let Cook drive the car from time to time in exchange for drugs. Kenney was charged with five parole violations: (1) failing to keep an appointment with his parole officer; (2) violating state law (felon in possession of a firearm) by having a gun in his car; (3) violating parole conditions against having a gun; (4) violating parole conditions against having a gun and ammunition; and (5) stealing property from his mother and pawning it.
On April 23, 2008, Kenney’s parole was revoked after a parole board finding that he was in possession of the gun and ammunition found in the Mercedes. He pleaded guilty to missing a meeting with his parole agent; the agent dismissed the stealing count. No criminal charges were issued by the county prosecutor.
Kenney filed a complaint for habeas corpus – claiming that he was wrongfully detained and should be released – in the circuit court. On August 8, 2010, the circuit judge directed the parole board to conduct another hearing because the state had failed to turn over evidence favorable to Kenney, including that Cook had been driving the car alone a couple of weeks before Kenney was stopped, and that the police officers who stopped Cook found a gun in the engine compartment. The evidence also indicated that the gun had been stolen by someone matching Cook’s description.
Following a two-day hearing, an administrative law examiner recommended that the parole board find Kenney guilty of violating his parole because he “should have known” the gun was in the car based on his association with Cook, his knowledge of Cook’s drug dealing, and his awareness that Cook was caught with a gun hidden in the same spot in the same car a couple of weeks earlier. The parole board continued Kenney’s parole, but Kenney again filed a complaint for habeas corpus. The circuit judge released Kenney from parole, finding “as a matter of law” that Kenney did not commit four of the five parole violations he was charged with. The judge found a “radical defect in jurisdiction” arising from a due process violation in the parole revocation hearing. The administrative law examiner erred by using a “should have known” standard, the circuit judge said, and the evidence failed to establish that Kenney had actual or constructive possession of the handgun.
The Attorney General appealed, arguing that there was no radical defect in jurisdiction that would have rendered the parole board’s decision void. In an unpublished per curiam opinion, a majority of the Court of Appeals agreed and reversed the circuit court’s grant of habeas corpus.
A “radical defect in jurisdiction” requires an act or omission that clearly contravenes an express legal requirement, the majority explained. Under Michigan law, it is not clear whether or when a claim of insufficient evidence may establish a radical defect in jurisdiction for the purpose of habeas relief. But under federal decisions, even “some evidence” will support a revocation of parole, the majority noted. While there was no direct evidence that Kenney knew about the gun, there was sufficient circumstantial evidence to support the conclusion that Kenney had “constructive possession” of the gun. The evidence established, the majority noted, that Kenney and Cook lived together, that Cook traded drugs to Kenney in exchange for using the car where the gun was found, that Kenney knew Cook was a drug dealer and could reasonably infer that drug dealers carry weapons, and that Cook was a passenger in the Mercedes when Kenney was stopped by the police. A reasonable fact-finder could decide that plaintiff constructively possessed the firearm, so there was no due process violation, the majority reasoned.
Finally, it did not appear that the administrative law examiner’s findings were based solely on the “should have known” standard, the majority said. While the examiner cited that standard, her reasoning suggested that she found that Kenney actually knew about and constructively possessed the firearm. Thus, there was not a radical defect in the parole board’s jurisdiction warranting habeas corpus relief, the majority concluded.
But the dissenting judge said that the administrative law examiner should have applied a “preponderance of the evidence” standard instead of “should have known.” Under a “preponderance of the evidence” standard, the law examiner’s findings do not support a determination that Kenney actually or constructively possessed the firearm, the dissent said. Cook was in possession of the Mercedes before Kenney began driving, and admitted that Kenney did not put the gun in the car, the dissent noted, and the law examiner found Cook’s testimony credible. Moreover, when Cook was arrested while driving the car two weeks earlier – when police discovered a gun in the engine compartment – Kenney was not present, the dissent said. Thus, the trial court appropriately found that there was insufficient evidence to sustain a gun possession finding, the dissent concluded. Since Kenney pleaded guilty to failing to make a scheduled report, the case should be remanded to the parole board to determine whether to revoke Kenney’s parole on that basis, the dissent added.
Kenney appealed. In an order dated September 19, 2012, the Supreme Court ordered the case to be scheduled for oral argument “on whether to grant the application or take other action.” The Court directed the parties to address in their briefs “(1) what standards should govern whether to grant habeas corpus relief; (2) whether a claim of insufficient evidence in the context of a parole hearing may provide a basis for habeas corpus relief; (3) whether evidence that a parolee ‘should have known’ of the presence of an item is sufficient to establish possession of that item where possession of the item constitutes a violation of parole; and (4) what standard of review applies to factual decisions by the Parole Board.”
The Court heard oral argument on January 10. In an order dated January 25, 2013, the Supreme Court granted Kenney’s application for leave to appeal. The Court directed the parties to “address: (1) the relationship between common law and statutory habeas corpus; (2) the standard for establishing a claim for habeas corpus relief, including whether there is a difference between the standard for providing relief at common law and by statute, MCL 600.4301, et seq.; (3) the scope of the limitations on habeas corpus found in MCL 600.4310; (4) the effect, if any, of the availability of other means of review on claims for habeas corpus relief generally, and specifically in the context of parole revocation; (5) the validity and scope of the ‘radical defect’ requirement in habeas corpus cases, including whether such requirement is limited solely to defects in subject matter or personal jurisdiction; (6) the standard of review applicable to habeas corpus claims, including if there is a difference at common law and by statute; (7) the type(s) of relief that may be granted to successful habeas corpus claimants; and (8) whether habeas corpus principles recognize a distinction between executive detention and judicially-ordered detention and, if so, the significance of that distinction.”