            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



DEMETRIUS TAYLOR-BEY,                                                UNPUBLISHED
                                                                     April 30, 2019
               Plaintiff-Appellant,

v                                                                    No. 342122
                                                                     Montcalm Circuit Court
CARSON CITY CORRECTIONAL FACILITY                                    LC No. 2017-023222-AH
WARDEN,

               Defendant-Appellee.


Before: BECKERING, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.

        Plaintiff, Demetrius Taylor-Bey, appeals an order denying his petition for habeas corpus
relief. We affirm.

                   I. RELEVANT FACTS AND PROCEDURAL HISTORY

        In 2009, following his conviction for felon in possession of a firearm, MCL 750.224f,
and possession of a firearm while committing a felony, MCL 750.227b, the trial court sentenced
plaintiff as a fourth habitual offender, MCL 769.12, to appropriate terms of imprisonment.
While incarcerated, plaintiff was convicted of being a prisoner in possession of a weapon, MCL
800.283(4), for which he received a sentence of 16 months to five years in prison. In 2014, the
Michigan Parole Board approved plaintiff’s parole and assigned him a 24-month term of parole.
In September 2015, plaintiff was convicted of filing a false police report, MCL 750.411a(1)(b)
and sentenced to two years’ probation. As conditions for his probation, plaintiff was prohibited
from using or possessing weapons, using or possessing intoxicating substances, being in the
company of anyone using or possessing weapons, operating a motor vehicle without permission
from his parole officer, and associating with felons.

       While plaintiff was on parole, Detroit Police Officers observed a person wanted on a
felony warrant sitting in the passenger seat of the vehicle plaintiff was driving. After pulling the
vehicle over, officers observed a small bag with “crumbs of crack/cocaine” on the ground near
the passenger side of the vehicle. After having the passengers exit the vehicle, officers searched
it and found a paper bag containing 31 small bags of crack/cocaine in the back seat, and a large
meat cleaver and a loaded handgun with an extended magazine in the front seat. Plaintiff denied
knowledge of the gun, stating that it belonged to the person who had been sitting in the passenger
seat. Plaintiff was charged with 11 parole violations as a result of this incident.

         At a formal parole revocation hearing, the arresting officer testified that he observed
plaintiff “lean over towards the passenger side floorboard” and he heard a thump sound on the
floorboard. The officer testified that plaintiff told him that he was trying to get something out of
the glove box, but that he did not see plaintiff move towards the glove box. When officers
searched the vehicle, they recovered a handgun from under the front passenger seat. Plaintiff
testified that when the police pulled him over, the person sitting in the passenger seat took the
gun from her backpack and threw it under the front seat, and then threw her backpack in the
backseat. Plaintiff explained that he reached into the center console to remove his driver’s
license, and the thump the officer heard was the center console closing. Plaintiff testified that he
did not go to the glove box. Plaintiff testified that the only things he did wrong were driving
without his parole officer’s permission and picking up the wanted individual.

        The parole board considered the charged parole violations of possessing a weapon and
possessing ammunition. After considering plaintiff’s past conviction for filing a false police
report and his character for untruthfulness, the parole board found that the testifying officer was
more credible than plaintiff’s testimony and defense. The parole board found that there was
“strong evidence” that plaintiff reached down toward the front passenger floorboard to discard
the handgun and, in so doing, the gun made a thumping noise. By grabbing the gun to discard it,
plaintiff was in actual possession of the gun, so the parole board found plaintiff guilty of
possessing a weapon and possessing ammunition. The parole board also found plaintiff guilty of
driving without his parole officer’s permission, but dismissed all other parole violations.

        Turning next to the question of mitigating circumstances, the parole board considered
five letters of support provided by plaintiff, as well as character testimony from plaintiff and
three supporting witnesses. Plaintiff’s mother, friend, and girlfriend each testified that he would
adhere to the terms of his parole if released, and that he was an asset, rather than a menace, to the
community.

        The parole board revoked plaintiff’s parole, and plaintiff filed a pro se petition for a writ
of habeas corpus challenging the parole board’s decision. The trial court issued a brief order
denying plaintiff’s petition, finding that plaintiff was seeking relief outside the scope of a habeas
action, and stating that plaintiff could seek relief from the parole board’s decision by filing an
administrative appeal.

                                          II. ANALYSIS

        Plaintiff contends that the trial court erred by declining to consider the merits of his
petition and by denying him habeas relief, and that his petition set forth radical defects in the
parole board’s jurisdiction that render the proceeding void. We disagree. We review de novo
questions of law, People v Henry, 315 Mich App 130, 143; 889 NW2d 1 (2016), as well as a trial
court’s interpretation and application of statutes and court rules, Morales v Parole Bd, 260 Mich
App 29, 33; 676 NW2d 221 (2003).

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        A parole board may revoke parole “[i]f a preponderance of the evidence supports the
allegation that a parole violation occurred.” MCL 791.240a(10). If a proceeding before the
parole board contains a radical defect in jurisdiction that renders the proceeding or decision
absolutely void, a petition for habeas corpus is proper. See In re Stone, 295 Mich 207, 209; 294
NW 156 (1940). “A radical defect in jurisdiction contemplates . . . an act or omission by state
authorities that clearly contravenes an express legal requirement in existence at the time of the
act or omission.” People v Price, 23 Mich App 663, 671; 179 NW2d 177 (1970). Habeas relief
is not available to “test questions of evidence,” Stone, 295 Mich at 212, nor is it available as a
writ of error, Kenney v Booker, 494 Mich 852, 852; 830 NW2d 382 (2013).

         The trial court did not err in declining to consider the merits of plaintiff’s petition.
Plaintiff alleged in his petition that the board’s conclusion that he was in violation of his parole
was contrary to the evidence. He also alleged that the board violated his right to due process
when it considered his conviction for filing a false police report while on parole, and when it
determined his guilt based solely on the arresting officer’s testimony. Finally, he alleged that he
received ineffective assistance of counsel, and that the conditions of his parole were
constitutionally vague. These allegations pertain to the board’s consideration of the evidence of
plaintiff’s parole violation. Plaintiff essentially asked the trial court to review the sufficiency of
the evidence, the contents of the evidence, defense counsel’s performance with the evidence, and
the parole board’s determinations regarding the weight and credibility of the evidence. Habeas
relief is not available to “test questions of evidence,” Stone, 295 Mich at 212, nor is it available
as a writ of error, Kenney, 494 Mich at 852. Thus, the trial court did not err by declining to
consider these allegations of error in plaintiff’s petition because they were not subject to habeas
relief.

        Plaintiff also alleged in his petition that the board denied him an in-person hearing at the
mitigation stage of the revocation proceedings. To the contrary, the record evidence shows that
plaintiff was present for the mitigation stage of the board’s proceedings and presented five letters
of support, testified, and presented the testimony of three other witnesses. Thus, plaintiff’s
allegation of error in the board’s proceedings at the mitigation stage is without factual support.
In addition, even if there were factual support for plaintiff’s allegation, any error would not rise
to the level of a “radical defect.” “[T]he full panoply of rights due a defendant in a criminal
proceeding does not apply to parole revocation, but . . . some orderly process, however informal,
[is] required.” Triplett v Deputy Warden, 142 Mich App 774, 782; 371 NW2d 862 (1985), citing
Morissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972). Moreover, the due
process required in the context of parole is minimal: a prisoner must be afforded an opportunity
to be heard and provided with a statement of reasons why his parole was denied. Swarthout v
Cooke, 562 US 216, 220; 131 S Ct 859; 178 L Ed 2d 732 (2011). The record is clear that
plaintiff had an opportunity to be heard, to call his own witnesses, to cross-examine the State’s
witness, and to present evidence and witnesses of any mitigating circumstances, and that he
received notification of why his parole was revoked. Thus, plaintiff enjoyed more than minimal
due process. See id.

        We conclude that the trial court did not err by declining to consider the merits of
plaintiff’s petition for a writ of habeas corpus. Five of plaintiff’s six allegations of error



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pertained to questions about evidence, and habeas relief is not available to “test questions of
evidence,” Stone, 295 Mich at 212, and plaintiff’s sixth allegation was unsupported by fact.

       Affirmed.



                                                          /s/ Jane M. Beckering
                                                          /s/ Deborah A. Servitto
                                                          /s/ Cynthia Diane Stephens




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