                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0107n.06

                                           No. 08-1726                                  FILED
                                                                                     Feb 18, 2010
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


ROBERT TOWNSEND,                                         )
                                                         )
       Petitioner-Appellant,                             )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
               v.                                        )        COURT FOR THE EASTERN
                                                         )        DISTRICT OF MICHIGAN
DOUGLAS VASBINDER, Warden,                               )
                                                         )
       Respondent-Appellee.                              )
                                                         )



BEFORE: KENNEDY, ROGERS, Circuit Judges, and HOOD, District Judge.*

       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


       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 08-1726
Townsend v. Vasbinder


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 evidentiary

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, Nos. 08-1371, -1372, -1626 (6th Cir. Feb. 18, 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.


                                                  -2-
No. 08-1726
Townsend v. Vasbinder


       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 resentencing.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. 125961 (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 parolable 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


       1
           A copy of this motion was not included in the record below.

                                                -3-
No. 08-1726
Townsend v. Vasbinder


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”).




                                                  -4-
No. 08-1726
Townsend v. Vasbinder


       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 Townsend v. Vasbinder, No. 04-CV-74846, 2008 WL

1902105, at *5 (E.D. Mich. April 30, 2008). The district court also remained unpersuaded that

Townsend was entitled to resentencing. Id. Townsend now appeals.

       Pursuant to the injunctive relief ordered by the Foster district court, Townsend was released

on a four-year term of parole during the pendency of this appeal. However, this court has since

reversed the Foster district court’s grant of the plaintiffs’ motion for summary judgment on the ex

post facto claim and vacated the injunction. See Foster v. Booker, Nos. 08-1371, -1372, -1626 (6th



       2
        The parties devote a significant part of their briefs to the issue of the proper standard of
review on appeal. Because we dismiss Townsend’s appeal as moot, we do not reach that issue.

                                                -5-
No. 08-1726
Townsend v. Vasbinder


Cir. Feb. 18, 2010). At oral argument in Foster, counsel for the Michigan Parole Board and the

Michigan Department of Corrections stated that members of the plaintiff class who, like Townsend,

were released on parole pursuant to the Foster district court’s remedial order will not have their

parole revoked as a result of this court’s reversal of the Foster district court’s decision.

       Townsend’s release on parole rendered moot his request for relief in the form of an

evidentiary hearing to determine whether his immediate release is appropriate. A “case is moot

when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the

outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969)). To determine whether a case is moot, this court considers

“whether the relief sought would, if granted, make a difference to the legal interests of the parties.”

United States v. City of Detroit, 401 F.3d 448, 450-51 (6th Cir. 2005) (quoting McPherson v. Mich.

High Sch. Athletic Ass’n, 119 F.3d 453, 458 (6th Cir. 1997) (en banc)).

       This case is analogous to Demis v. Sniezek, 558 F.3d 508, 510 (6th Cir. 2009), where this

court dismissed as moot a federal inmate’s appeal from the dismissal of his habeas petition. In

Demis, the inmate-petitioner challenged the legality of a Bureau of Prisons’ regulation that

prohibited consideration of his request for transfer to a community correctional center. Id. The

inmate’s appeal was moot because, during the pendency of the litigation, the prisoner had been

transferred to a community correctional center and later placed on supervised release. Id. at 513; see

also id. at 515. Accordingly, this court concluded that “no actual injury remain[ed] that . . . could

[be] redress[ed] with a favorable decision.” Id. at 513. Similarly, Townsend’s appeal is moot


                                                 -6-
No. 08-1726
Townsend v. Vasbinder


because he has been released on parole and thus no longer needs an evidentiary hearing to determine

whether his immediate release is appropriate. Such an evidentiary hearing, if granted, would make

no difference to Townsend’s legal interests. Although Townsend argues in his reply brief that he

is entitled to additional relief because, but for the alleged ex post facto violation, he would have

completed his parole years ago, he cannot revise his argument on appeal to avoid dismissal for

mootness. Townsend’s appeal is, therefore, moot with regard to his request for an evidentiary

hearing.

       To the extent that Townsend’s release on parole did not render moot his request for

resentencing (as opposed to his request for a hearing), Townsend points to no authority that supports

his claim on appeal that he is entitled to such relief. The cases Townsend cites for the proposition

that the “usual remedy for an ex post facto violation in sentencing is a remand for resentencing,”

Townsend’s Br. 18 (quoting United States v. Lominac, 144 F.3d 308, 316 (4th Cir. 1998)) (emphasis

added), are distinguishable and thus unpersuasive. In Lominac, 144 F.3d 308, the criminal defendant

was sentenced for violating the terms of his supervised release under a law enacted after he had

committed his original offense. In Thompson v. Blackburn, 776 F.2d 118 (5th Cir. 1985), there

remained a factual question whether the criminal defendant had committed his offense before the

effective date of an amendment that eliminated the benefit of parole, probation, or suspension of

sentence for the convicted offense. In both Lominac and Thompson, then, the issue was whether a

criminal defendant had been sentenced, as an original matter, under a law that could properly be

applied to him. Neither Lominac nor Thompson involved a parole board’s implementation of a


                                                -7-
No. 08-1726
Townsend v. Vasbinder


change to a parole policy or procedure, allegedly unconstitutional when applied retroactively, after

the sentencing court had imposed an indisputably valid sentence for the convicted offense.

Therefore, in Lominac, and potentially in Thompson, “resentencing under the law in place at the time

the defendant committed his crime” was the appropriate remedy. See Lominac, 144 F.3d at 316.

Townsend has provided no further support for his assertion that resentencing also would be the

appropriate remedy here.

       In any event, even if this court were to reach the merits of Townsend’s habeas petition, he

still would not be entitled to relief. Townsend’s habeas petition rests on the facts developed in

Foster-Bey, 2008 WL 7020690, to establish the Michigan Parole Board’s ex post facto violation.

But this court has since reversed the Foster district court’s grant of the plaintiffs’ motion for

summary judgment on the ex post facto claim. See Foster v. Booker, Nos. 08-1371, -1372, -1626

(6th Cir. Feb. 18, 2010).

       For the foregoing reasons, Townsend’s appeal from the district court’s denial of his habeas

petition is dismissed.




                                               -8-
