Plaintiff, Joseph Lee Triplett, is currently a prisoner at the State Prison for Southern Michigan in Jackson County. Plaintiffs complaint for a writ of habeas corpus was denied by the Jackson County Circuit Court in an order dated February 17, 1984. The validity of the order denying the writ of habeas corpus is now before this Court on plaintiffs claim of appeal.
The background facts of this case are set forth in
People v Triplett,
On June 6, 1982, plaintiff was resentenced by another Recorder’s Court judge to from 20 to 40 years’ imprisonment, with credit given for 10 years, 297 days already served. It was revealed at the sentencing proceedings that plaintiff had been placed on parole on December 11, 1981. One of the conditions of his parole was:
"6. WEAPONS: The parolee may not own or possess a deadly weapon of any type or any imitation thereof, or knowingly be in the company of any person who possesses same.”
Plaintiff was arrested on August 30, 1982, when he failed to produce a driver’s license after state police stopped his car for missing taillights. A search of the bag which was on the seat beside him revealed a .38-caliber pistol loaded with eight bullets. Plaintiff was subsequently charged with carrying a weapon in a motor vehicle. Although he was released on the criminal charges because search of the bag was improper, plaintiff was placed into custody for violating parole when he reported to his parole officer on September 1, 1982.
Plaintiff admitted to the probation agent who prepared the parole violation report that he had been arrested on August 30, 1982, for carrying a weapon in a motor vehicle, but he denied that he had any knowledge that the gun was in the bag. He was, however, unable to explain to whom the gun belonged or how it got into the bag.
On September 3, 1982, an official parole violation charge was filed with the Department of Corrections. The charge informed the plaintiff that *778 he was accused of violating "Rule 6” of his parole by having had a pistol in his possession. On the same day, a parole violation warrant was issued for plaintiffs arrest and detention. A hearing on the parole violation charges was held on September 8, 1982. The parole board’s written decision to revoke plaintiffs parole was issued on September 22, 1982.
On February 2, 1984, approximately one year and four months after the revocation of his parole, plaintiff, acting in propria persona, filed a complaint for a writ of habeas corpus with the Jackson County Circuit Court. The complaint was denied two weeks later, the court reasoning that plaintiff was convicted upon criminal legal process and was not entitled to the relief for which he prayed.
On February 29, 1984, plaintiff filed a claim of appeal from the order denying his complaint. Plaintiffs statement of facts, certified by the circuit court, indicates that no hearing was held on plaintiffs complaint for habeas corpus in the circuit court, and no response or pleading was filed in the circuit court by defendant.
I
On appeal to this Court, a brief was filed on defendant’s behalf by the Attorney General. Defendant argues that review of a parole revocation is available under chapter 6 of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., but that according to that act plaintiff should have appealed the parole board’s decision to the circuit court within 60 days of his parole revocation. Because the 60-day appeal period is jurisdictional, defendant argues that plaintiff’s failure to file a timely appeal in the circuit court precludes review of the issues now presented on appeal.
*779
Defendant correctly notes that in
Penn v Dep’t of Corrections,
The Supreme Court has recognized that the review of a parole revocation decision is permissible upon a complaint for habeas corpus.
In re Casella,
Nevertheless, the circuit court’s denial of plaintiff’s complaint for habeas corpus is not properly before this Court. on appeal. It has long been established that a writ of error does not lie to review habeas corpus proceedings.
In re Brock,
In the instant case, plaintiff filed a "claim of appeal” from the circuit court’s denial of his complaint for habeas corpus. Since there is no appeal as of right from the circuit court’s action, this Court cannot properly review the validity of the circuit court’s denial of plaintiffs complaint.
However, even if plaintiffs complaint were properly before this Court, plaintiff has failed to establish a basis for issuing a writ of habeas corpus.
II
The function of a writ of habeas corpus is to test the legality of the detention of any person restrained of his liberty.
In re Huber,
Here, plaintiff claims that, several procedural errors in the proceedings surrounding the revocation of parole rendered his incarceration unconstitutional.
Plaintiff first asserts that the parole-violation warrant violated the Fourth Amendment to the United States Constitution and Article 1, § 11 of the Michigan Constitution, in that the warrant was not supported by a showing of probable cause or by oath or affirmation. Federal cases have found this warrant requirement inapplicable to warrants for the revocation of parole. United States v Thomas, 729 F2d 120 (CA 2, 1984); United States v Basso, 632 F2d 1007 (CA 2, 1980); United States v Polito, 583 F2d 48 (CA 2, 1978); Story v Reves, 68 App DC 325; 97 F2d 182 (1938); Jarman v United States, 92 F2d 309 (CA 4, 1937).
Although Michigan courts have not specifically ruled as to whether the Michigan Constitution provides parolees with a higher standard of protection than the Fourth Amendment to the United States Constitution, the similar treatment given parolees by the Michigan courts strongly suggests that Michigan law parallels federal law on the issue of whether a revocation of parole constitutes a "seizure” of the parolee so as to invoke the oath or affirmation requirement of Const 1963, art 1, § 11. Michigan courts and the Legislature, like the federal courts, have recognized that a prisoner on parole remains "in custody” despite the fact that the parolee is no longer confined within prison walls. MCL 791.238; MSA 28.2308;
In re Casella, supra; People v Bendoni,
We note that plaintiff makes no allegation that there was less than probable cause for believing that he violated his parole. The warrant was issued based on an unsworn parole-violation report prepared by his probation agent. The report set forth with particularity the circumstances surrounding detection of the alleged violation and was grounded on statements made by two police officers. Plaintiff was taken into physical custody for violation of his parole, not by law enforcement officers but by parole employees when plaintiff appeared at his parole agent’s office. In light of these facts, the use of a warrant which was not supported by oath or affirmation did not render plaintiff’s incarceration unconstitutional.
Plaintiff next argues that he was denied due process and equal protection because he was not afforded a preliminary hearing. The Supreme Court in
Morrissey v Brewer,
Although the statute was subsequently changed, on the date of plaintiffs arrest for violating the conditions of his parole there was no statutory right to a preliminary hearing. However, Rule 791.7740 of the Michigan Administrative Code provided for a preliminary hearing to be conducted as promptly as possible, assuring that the minimal due process standards stated in Morrissey would be met. Plaintiff admits in his brief that his final hearing, held just eight days after his arrest, did not constitute a substantial delay, and that he was not detained in a location distant from the site of the parole-revocation hearing. Accordingly, even though there was no preliminary hearing, plaintiff was not denied due process, as envisioned by the Supreme Court in Morrissey, and therefore is not entitled to a writ of habeas corpus on this ground.
Plaintiffs claim that his right to equal protection was violated is similarly without merit. Plaintiff has failed to establish that the "discrimination” between parolees afforded prompt hearings at locations close to the revocation hearing and other parolees is arbitrary, capricious or not related to governmental objectives.
Crider v Michigan,
Plaintiff next argues that his due process rights were violated because he was not given notice of the charge on which his parole was ultimately revoked. Plaintiff claims he was only given notice of the charge of "possessing” a firearm, and not of the charge of "having knowledge of a gun”. Since *784 plaintiff, who was represented by counsel at the revocation proceedings, did not contest the fact that a gun was present in the bag or that the bag was in his possession, the critical element of possession to be established at the hearing was plaintiff’s knowlege that the gun was there. Separate notice regarding plaintiff’s knowledge was not required.
Plaintiff’s final argument is that he is entitled to a writ of habeas corpus because condition 6 of his parole, which prohibited the possession of a firearm, was not promulgated in accordance with the procedures set forth in the APA. This Court recently ruled that an inmate may not be disciplined for an offense which has not been promulgated as a rule pursuant to the APA.
Martin v Dep’t of Corrections,
Plaintiff has thus failed to establish a basis for issuing a writ of habeas corpus, and even if this matter were properly before this Court, we would not disturb his parole revocation and subsequent reincarceration.
Affirmed.