The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Keith v. Dept. of Rehab. & Corr., Slip Opinion No. 2018-Ohio-3128.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-3128
THE STATE EX REL. KEITH, APPELLANT, v. DEPARTMENT OF REHABILITATION
& CORRECTION ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Keith v. Dept. of Rehab. & Corr., Slip Opinion No.
2018-Ohio-3128.]
Mandamus—Inmate failed to show that his parole record contains false or
misleading information that might have adversely affected parole board’s
consideration of his parole request—Court of appeals’ denial of writ
affirmed.
(Nos. 2017-1015 and 2017-1214—Submitted February 13, 2018—Decided
August 8, 2018.)
APPEALS from the Court of Appeals for Franklin County,
No. 15AP-1080, 2017-Ohio-4406.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} In these consolidated appeals, appellant, Bernard R. Keith, appeals
the judgment of the Tenth District Court of Appeals denying his petition for a writ
of mandamus to compel appellee Ohio Parole Board to hold a parole hearing at
which his parole request is given “meaningful consideration.” We affirm the
judgment of the court of appeals.
Background
{¶ 2} Keith is a state inmate serving an indeterminate sentence. Following
a hearing held in February 2012, the parole board denied Keith parole, in part based
on its finding that he had been previously paroled eight times. State ex rel. Keith
v. Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, 24 N.E.3d 1132, ¶ 6
(“Keith I”). The board set the next hearing for 62 months later (i.e., April 2017).
{¶ 3} On May 8, 2012, Keith filed an original action in the Tenth District
Court of Appeals seeking a writ of mandamus to compel the board to correct
allegedly inaccurate information in his parole record. The court of appeals denied
the writ as moot, finding that the board had corrected the inaccurate information in
Keith’s parole record and subsequently had decided not to modify its previous
decision. Id. at ¶ 13.
{¶ 4} On October 7, 2014, we reversed and granted a writ of mandamus.
Id. at ¶ 32. We held that Keith had made a showing that there may still be
substantive errors in his parole record that, if not corrected, may influence the
board’s consideration of his parole and prevent his application from receiving
meaningful consideration, id. at ¶ 21, 30, and we ordered the board “to investigate
Keith’s allegations and correct any substantive errors in the record used to consider
him for parole,” id. at ¶ 32.
{¶ 5} In October 2014, the parole board notified Keith that it had corrected
some of the parole-record errors that he had alleged in the Keith I litigation.
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January Term, 2018
{¶ 6} The new hearing took place on February 17, 2015. Several weeks
later, the parole board informed Keith that it had denied his parole request and that
his next hearing would be in April 2017 (the same date that had been set for his
next hearing when he was denied parole in February 2012).1 His request for
reconsideration was denied.
{¶ 7} On November 30, 2015, Keith filed a second petition for a writ of
mandamus against the board in the Tenth District Court of Appeals. Keith’s second
petition alleged that his parole request did not receive “meaningful consideration”
at the February 2015 hearing, as required by Keith I. As evidence of the alleged
lack of meaningful consideration, Keith pointed to the fact that the parole board did
not change the date of his next parole hearing, despite the corrections that the board
had made to the information in his parole record.
{¶ 8} After the parties submitted evidence and briefs, the Tenth District
magistrate appointed to hear the case issued a decision on February 17, 2017, in
which he concluded that Keith had failed to show by clear and convincing evidence
that his parole record contained any significant errors or that the board had relied
on substantively inaccurate information. Keith filed objections to the magistrate’s
decision.
{¶ 9} On June 20, 2017, the Tenth District Court of Appeals overruled
Keith’s objections, adopted the magistrate’s findings of fact and conclusions of law,
and denied the request for a writ of mandamus. The court of appeals denied Keith’s
application for reconsideration and motion for relief from judgment.
{¶ 10} Keith filed two notices of appeal. On July 25, 2017, he appealed the
court of appeals’ denial of the writ (case No. 2017-1015). And on August 31, 2017,
he appealed the denial of his application for reconsideration (case No. 2017-1214).
1
The parole hearing that had been scheduled for April 2017 was actually held on February 9, 2017.
At that hearing, the parole board denied Keith’s parole request and scheduled the next hearing for
February 2020.
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SUPREME COURT OF OHIO
On November 1, 2017, we consolidated the two appeals. 151 Ohio St.3d 1423,
2017-Ohio-8371, 84 N.E.3d 1062.
Procedural motions
{¶ 11} On November 15, 2017, Keith filed (in both cases) an unopposed
motion to reduce the number of copies of his briefs required for filing. We grant
the motion.
{¶ 12} On November 17, he filed a motion for leave to file an amended
cover page for his merit brief in case No. 2017-1015 to reflect its consolidation with
case No. 2017-1214. We grant that motion.
{¶ 13} Finally, Keith has filed three requests for judicial notice. The first,
filed November 15, 2017, asked this court to take judicial notice of a motion for a
stay that he filed in this court on October 20. Because he withdrew the stay motion
on December 19, that request is denied as moot. Next, on December 19, he filed a
request that this court take judicial notice that he placed his reply brief in the
institutional mailbox within the time allowed by this court’s rules. But because the
reply brief was received and filed and because no one has challenged its timeliness,
we deny that request as moot. In addition, Keith’s reply brief complains that pages
were missing from the copy of the board’s merit brief that he received. Although
he presents this complaint as an “issue for judicial notice,” he asks for no relief in
connection with it.
Merits of the appeal
{¶ 14} In his merit brief, Keith asserts nine propositions of law, but there is
only one issue of consequence: has Keith demonstrated that the parole board failed
to give his parole request meaningful consideration at his February 2015 hearing,
as a result of materially false or misleading information in his parole record?
{¶ 15} As previously noted, Keith’s claim is premised on the fact that after
the February 2015 hearing, the parole board did not change the scheduled date of
his next parole hearing. He sees that as evidence that the board’s review of his
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January Term, 2018
parole request was cursory and/or biased. But there is no basis for Keith’s
assumption that the board’s correction of the errors in his parole record should have
caused the board to reach a different decision. It is equally possible that he
overstated the significance of the inaccuracies in his record and that a fair review
of his record would lead the board to make the same decision.
{¶ 16} The issue in Keith I concerned the problem of materially false or
misleading information in an inmate’s parole record. And on that score, Keith has
only one allegation: he claims that his parole record contains an entry indicating
that he participated in an education program referred to as “GED Fast Track” even
though he had not enrolled in that program. However, Keith has suggested no
reason to believe that this allegedly erroneous information was material to his
parole request. And contrary to his assertion, this court in Keith I did not hold that
a writ of mandamus will issue every time an inmate identifies a factual error in his
parole record. Rather, a writ will issue when there is a credible claim of an error
that may prevent the inmate’s application from receiving meaningful consideration.
Keith I, 141 Ohio St.3d 375, 2014-Ohio-4270, 24 N.E.3d 1132, at ¶ 21; id. at ¶ 30
(requiring “a showing that there may be substantive errors in [the inmate’s] record
that may influence the [APA’s] consideration of his parole”).
{¶ 17} Keith has failed to demonstrate the elements of his eponymous
claim: that his parole record contains false or misleading information that might
have adversely affected the parole board’s consideration of his parole request. We
therefore affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE,
and DEGENARO, JJ., concur.
_________________
Bernard R. Keith, pro se.
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SUPREME COURT OF OHIO
Michael DeWine, Attorney General, and George Horvath, Assistant
Attorney General, for appellees.
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