The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Cobb v. Adult Parole Auth., Slip Opinion No. 2018-Ohio-4745.]
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-4745
THE STATE EX REL. COBB, APPELLANT, v. ADULT PAROLE AUTHORITY ET AL.,
APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Cobb v. Adult Parole Auth., Slip Opinion No.
2018-Ohio-4745.]
Mandamus—Parole—Inmate failed to meet his burden to present credible
allegation of substantive inaccuracy in information contained in his parole-
board file—Court of appeals’ denial of writ affirmed.
(No. 2017-0532—Submitted December 5, 2017—Decided November 29, 2018.)
APPEAL from the Court of Appeals for Franklin County,
No. 16AP-199, 2017-Ohio-1170.
________________
DEWINE, J.
{¶ 1} This is an appeal from a judgment of the Tenth District Court of
Appeals denying a writ of mandamus to an Ohio prisoner. The prisoner alleges that
his parole-board file contains inaccurate information; he seeks to have the parole
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board correct the information in his file and hold a new parole hearing. We
conclude that he has failed to meet his burden to present a credible allegation of a
substantive inaccuracy in the information contained in his file. As a consequence,
we affirm the judgment of the Tenth District Court of Appeals denying the writ.
Background
{¶ 2} Michael Cobb is serving a prison sentence of 18 years to life for his
1998 convictions for robbery and murder with a gun specification. Cobb attended
an Ohio Parole Board hearing on June 11, 2015, after which the board denied his
request for parole. In reaching its decision, the parole board noted that Cobb
exhibited “good insight into his crimes” and “did display remorse for his actions.”
But the board also expressed concern over Cobb’s “problematic conduct” during
his incarceration and determined that “a release at this time would demean the
serious nature of this crime,” as “[t]he male victim in this offense was shot in the
back by the offender and was then robbed of his property.”
{¶ 3} Ohio Adm.Code 5120:1-1-07(A) provides that an inmate may be
released at the time he becomes eligible for parole unless the parole board finds that
continued incarceration is necessary for certain specified reasons. The board
concluded that continued incarceration was necessary in Cobb’s case on the
following grounds:
(2) There is substantial reason to believe that due to the
serious nature of the crime, the release of the inmate into society
would create undue risk to public safety, or that due to the serious
nature of the crime, the release of the inmate would not further the
interest of justice nor be consistent with the welfare and security of
society.
(3) There is substantial reason to believe that due to serious
infractions of [Ohio Adm.Code 5120:9-06], the release of the inmate
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would not act as a deterrent to the inmate or to other institutionalized
inmates from violating institutional rules and regulations.
See Ohio Adm.Code 5120:1-1-07(A).
{¶ 4} Cobb filed a complaint for a writ of mandamus in the Tenth District
Court of Appeals in which he requested an order compelling the Ohio Adult Parole
Authority (“APA”) to correct five alleged inaccuracies in the records that the parole
board relied on and to hold a new hearing. The gist of Cobb’s claim is that the
parole board might have granted his request for parole had it not relied on
substantive errors in his file. In support of his claim, Cobb cites our decision in
State ex rel. Keith v. Adult Parole Auth., 141 Ohio St.3d 375, 2014-Ohio-4270, 24
N.E.3d 1132.
{¶ 5} The APA filed a motion to dismiss, and the Tenth District appointed
a magistrate to hear the case. With regard to each of the five alleged inaccuracies,
the magistrate determined that Cobb had failed to demonstrate a substantive error
that may have influenced the parole board’s consideration of parole. The magistrate
therefore recommended that the APA’s motion1 be granted and Cobb’s request for
a writ be denied. The court of appeals adopted the magistrate’s decision denying
the writ. Cobb appealed to this court.
Cobb has failed to show that he is entitled to a writ of mandamus
{¶ 6} To be entitled to a writ of mandamus, Cobb must establish by clear
and convincing evidence (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the APA to provide it, and (3) the lack of an adequate
remedy in the ordinary course of law. State ex rel. Waters v. Spaeth, 131 Ohio
St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13.
1. Because the APA’s motion to dismiss contained matters outside the record, the magistrate treated
it as a motion for summary judgment. See Civ.R. 12(B).
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{¶ 7} Cobb relies on our decision in Keith, 141 Ohio St.3d 375, 2014-Ohio-
4270, 24 N.E.3d 1132, in asserting his entitlement to the writ. There, the parole
board had denied prisoner Bernard Keith’s request for parole, explaining that its
decision was based in part on information in his parole-board file indicating that he
had been paroled eight times. Id. at ¶ 6. That information was incorrect; Keith had
been paroled six times. Id. at ¶ 12. We granted a writ of mandamus, concluding
that because Keith had “made a showing that there may be substantive errors in his
record,” the APA “must therefore conduct an investigation into Keith’s allegations
and correct any substantive errors” in his parole-board file. (Emphasis added.) Id.
at ¶ 30.
{¶ 8} We did not define “substantive error” in Keith, but Black’s Law
Dictionary explains that “substantive error” is synonymous with “substantial
error,” Black’s Law Dictionary 660 (10th Ed.2014). It is “[a]n error that affects a
party’s substantive rights or the outcome of the case” and, as a consequence, “may
require reversal on appeal.” Id.2 It was clear in Keith that the alleged error was
substantive—that it could have affected the parole board’s consideration of Keith’s
parole—because the parole board had expressly based its decision in part on the
erroneous information. See Keith at ¶ 6.
{¶ 9} Thus, we review each of the five alleged errors asserted by Cobb to
determine whether there is a reasonable possibility that but for the alleged error, the
parole board would have reached a different decision.
2. The separate opinion challenges this standard, asserting that Keith requires a showing not of a
substantive error but only of the possibility of a “significant” or “nontrivial” error, without any
consideration of whether the possible error may have affected the outcome. Opinion concurring in
part and dissenting in part at ¶ 23. It says that in our multiple references in Keith to “substantive
error,” we were simply praising Keith for “going above and beyond” what was required. Id. at ¶ 27.
But, following Keith, in an opinion joined by the author of today’s separate opinion, this court
reiterated our holding in Keith as “requiring ‘a showing that there may be substantive errors in [the
inmate’s] record that may influence the [APA’s] consideration of his parole.’ ” (Brackets sic.) Keith
II, 153 Ohio St.3d 568, 2018-Ohio-3128, 109 N.E.3d 1171, at ¶ 16, quoting Keith at ¶ 30.
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The assault allegations
{¶ 10} The first alleged error raised by Cobb concerns a factual narrative of
his crimes contained in the Parole Board Information Sheet, which was apparently
derived from witness statements. Specifically, Cobb disputes the narrative’s
accuracy in stating that before robbing and shooting the victim, Cobb and another
person assaulted the victim “with the butt of a gun, their fists, and their feet.” Cobb
claims that the information about the assault is inconsistent with the victim’s
autopsy report, which does not refer to any external injuries beyond the gunshot
wound. Because Cobb pleaded guilty to the robbery and murder offenses, the
factual record before us is minimal.
{¶ 11} But even accepting Cobb’s characterization of the record, we
conclude that he has not alleged a substantive inaccuracy sufficient to warrant a
writ of mandamus. This is because the parole board did not base its determination
that Cobb’s release would demean “the serious nature of the crime,” Ohio
Adm.Code 5120:1-1-07(A)(2), on the assault allegations. Rather, the parole board
was explicit that its finding on seriousness was predicated on the victim’s having
been shot in the back and then robbed: “The Board by way of a Majority Vote has
determined that a release at this time would demean the serious nature of this crime.
The male victim in this offense was shot in the back by the offender and was then
robbed of his property that was on his person.” Because it is clear that the allegedly
inaccurate information about the assault had no bearing on the parole board’s
decision, Cobb has suffered no prejudice.
{¶ 12} In denying Cobb’s claim based on the disputed assault allegations,
the magistrate reasoned: “The information sheet [Cobb] attached is not mentioned
in the parole board’s decision to deny him parole and [he] cannot establish that it
was even considered.” 2017-Ohio-1170, ¶ 57. Cobb is correct that this analysis
misapplies our holding in Keith, 141 Ohio St.3d 375, 2014-Ohio-4270, 24 N.E.3d
1132. Under the magistrate’s approach, an inmate would have a viable Keith claim
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only if the parole board had expressly cited the allegedly false information in its
decision. This is inconsistent with our recent conclusion that “a writ will issue
when there is a credible claim of an error that may prevent the inmate’s application
from receiving meaningful consideration,” State ex rel. Keith v. Dept. of Rehab. &
Corr., 153 Ohio St.3d 568, 2018-Ohio-3128, 109 N.E.3d 1171 (“Keith II”), ¶ 16,
citing Keith at ¶ 21, 30. Thus, we do not hold that an inmate can never establish a
meritorious Keith claim unless the alleged error is specifically referred to in the
parole board’s decision.
{¶ 13} The question is whether the alleged error, supported by evidence,
may have affected the outcome of the parole hearing. See Keith at ¶ 28, 30.
Because it is apparent here that the parole board did not rely on the alleged
inaccuracy in analyzing the Ohio Adm.Code 5120:1-1-07(A) factors and reaching
its decision, Cobb has not made a credible allegation of a substantive error. Thus,
we deny Cobb’s claim for relief based on the assault allegations.
The description of Cobb’s sentence
{¶ 14} Cobb next alleges that two records in the parole board’s hearing
file—the Parole Board Information Sheet and the minutes of his 2014 clemency
hearing—incorrectly state his aggregate prison sentence to be 23 years to life
instead of 18 years to life. Cobb’s sentence is clearly 18 years to life: he received
a sentence of 15 years to life on the murder count, to be served consecutively to a
3-year sentence for the gun specification, for an aggregate minimum sentence of 18
years. The trial court also imposed a concurrent 5-year sentence for the robbery
conviction.
{¶ 15} Cobb argues that his aggregate sentence is notated in a manner
suggesting that the 5-year term was imposed consecutively instead of concurrently:
“3.00 GUN + 5.00 TERM + 15.00-LIFE” (capitalization sic) on the Parole Board
Information Sheet and “3 Gun + 5 Term + 15 - Life” in the clemency-hearing
minutes. But the concurrent nature of the 5-year term is reflected in the Parole
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Board Decision and Minutes: “15-life + 3 gun cc/w/ 5 years” (or, in other words,
“concurrent with” 5 years). And there is no doubt that the parole board understood
that Cobb’s minimum sentence is 18 years—because he was given a parole hearing
in 2015, near the end of his 18th year of incarceration.3 When a sentence of life
imprisonment is imposed for the offense of murder, a prisoner becomes eligible for
parole “at the expiration of the prisoner’s minimum term.” R.C. 2967.13(A)(1). If
the APA had incorrectly believed that Cobb’s sentence was 23 years to life, as Cobb
suggests, then his first parole hearing would not have been held until 2020. Thus,
we conclude that Cobb has failed to demonstrate any error based on the description
of his aggregate sentence.
Problematic conduct
{¶ 16} Cobb next takes issue with the board’s determination that he had
engaged in “problematic conduct” during his time as an inmate. He disputes the
board’s finding based largely on his assertion that one of the board members
commended him at the hearing for his “good institutional behavior and growth.”
Cobb has presented two pieces of evidence to establish his good behavior: his Ohio
Department of Rehabilitation and Correction “Job History” sheet, which indicates
that he had not been placed in the prison’s “bad behavior” housing unit in the past
ten years; and a document detailing his security-classification level, which had been
lowered to the least restrictive level three years prior to the hearing.
{¶ 17} Cobb essentially asks us to consider the reasonableness of the
board’s concern over problematic conduct, but he has not pointed to a specific error
in the materials that the parole board relied on. In its decision, the board encouraged
Cobb to “work on not receiving any future conduct reports.” Although the
documents he cites demonstrate some good conduct in recent years, he has not
3. Cobb received 173 days of pretrial credit at the time of his sentencing on January 27, 1998,
indicating that his incarceration began in August 1997. He became eligible for parole 18 years later
in 2015, as indicated throughout the parole records.
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made a showing that there were no instances of bad conduct in his parole-board file
on which the board could have based its determination. Thus, he has failed to
present credible evidence of a substantive inaccuracy in the information in the
parole board’s file concerning his behavior in prison.
Alleged statements of parole-board members
{¶ 18} The last two errors claimed by Cobb are premised solely on
statements allegedly made by board members at his parole hearing. The first
pertains to a board member’s alleged statement asking Cobb “to elaborate on his
juvenile felonious assault conviction,” even though that charge had been dismissed.
The second involves a board member’s alleged statement that Cobb had been
transferred from another institution in 2004 for “failure to adjust,” whereas Cobb
maintains he was transferred for a different reason.
{¶ 19} The question is whether either of the purported statements
constitutes a credible allegation of error in Cobb’s parole-board file sufficient to
trigger the parole board’s duty to review his file. In both instances, we think they
do not. It is equally plausible that the parole-board members misread an accurate
record of Cobb’s juvenile history and misstated the basis for Cobb’s transfer to
another institution. We decline to create a rule in which an inmate’s
unsubstantiated allegation of an incorrect statement made during a parole hearing,
by itself, presents a claim of error in his parole-board file sufficient to entitle him
to a writ of mandamus. Thus, we deny Cobb’s request for relief based on the
alleged statements regarding the juvenile charge and the basis for his prison
transfer.
Conclusion
{¶ 20} For the reasons stated above, we affirm the judgment of the court of
appeals denying the requested writ of mandamus.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, J., concur.
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January Term, 2018
KENNEDY, J., concurs in judgment only.
FISCHER, J., concurs in part and dissents in part, with an opinion joined by
FRENCH, J.
DEGENARO, J., not participating.
_________________
FISCHER, J., concurring in part and dissenting in part.
{¶ 21} I respectfully concur in part and dissent in part. The lead opinion
misunderstands this court’s holding in State ex rel. Keith v. Adult Parole Auth., 141
Ohio St.3d 375, 2014-Ohio-4270, 24 N.E.3d 1132, and purports to fashion a new
test for so-called Keith claims that, in practice, is not likely be satisfied in any case.
While I agree with the lead opinion that the second, third, fourth, and fifth errors
alleged by appellant, Michael Cobb, as to his parole file are unavailing, I would
hold that he is entitled to mandamus relief in connection with his first alleged error.
{¶ 22} Keith was an attempt to balance two potentially conflicting interests.
On the one hand, the court recognized that parole applicants have “a minimal due-
process expectation that the factors considered at a parole hearing are to be as
described in the statute or rule and are to actually and accurately pertain to the
prisoner whose parole is being considered.” (Emphasis added.) Id. at ¶ 25. On the
other hand, the court stated that the Ohio Adult Parole Authority (“OAPA”) should
not be required to investigate and correct every allegation of an inaccuracy in an
inmate’s parole file, however minor or debatable. The court therefore held that
when “there are credible allegations, supported by evidence, that the materials
relied on at a parole hearing were substantively inaccurate, the OAPA has an
obligation to investigate and correct any significant errors in the record of the
prisoner.” Id. at ¶ 28.
{¶ 23} Keith does not define the key phrases, “substantively inaccurate” and
“significant errors,” but the terms are not difficult to understand. Information is
“inaccurate” when it “contain[s] a mistake or error.” Webster’s Third New
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International Dictionary 1139 (2002). And the modifier “substantively” means
“considerabl[y] in amount or number.” Id. at 2280. Likewise, an “error,” also
known as a “mistake,” is “[a]n assertion that does not conform to objective reality;
a belief that what is false is true or that what is true is false,” Black’s Law Dictionary
659 (10th Ed.2014), and an error is “significant” when it is “[o]f special
importance” or “momentous,” id. at 1594. Thus, the court concluded in Keith that
when there are “credible allegations” (emphasis added), supported by evidence,
that a parole file contains mistakes that are of some significance (i.e., nontrivial), a
writ of mandamus will issue to compel the parole authorities to investigate and, if
necessary, correct the records. Keith at ¶ 28.
{¶ 24} Applying that standard, I agree with the lead opinion that Cobb’s
second, third, fourth, and fifth alleged errors do not constitute “significant errors.”
However, I would hold that his first alleged error does satisfy the Keith standard.
{¶ 25} The factual summary of Cobb’s offenses contained in the Ohio
Parole Board Information Sheet states that before he shot the victim, he and his
father “began assaulting the victim with the butt of a gun, their fists, and their feet.”
However, the victim’s autopsy report does not mention any external injury or
trauma other than the bullet wound. Thus, Cobb has offered evidence to suggest
that the parole board’s understanding of the facts of his crimes may have been
incorrect. The board is required, as part of its parole decision, to take into account
“the serious nature of the crime.” Ohio Adm.Code 5120:1-1-07(A)(2). Cobb’s first
alleged error is therefore “significant,” in the sense that it relates to a material
portion of the parole board’s analysis and would likely color the view of a
reasonable reader by making Cobb’s offenses, which were ruthless and brutal,
appear to be of an even higher degree of ruthlessness and brutality. I would
therefore grant a writ of mandamus to compel the parole board to reexamine Cobb’s
parole file and if the description of his assault of the victim is false, to correct it and
conduct a new parole hearing.
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{¶ 26} The lead opinion reaches a different result in reliance on a dictionary
definition of the wrong phrase from Keith. After stating its holding, the Keith court
went on to conclude that Bernard Keith, the inmate in that case, had shown that
“there may be substantive errors in his record that may influence the OAPA’s
consideration of his parole”; the court then ordered the OAPA to correct any such
“substantive errors.” 141 Ohio St.3d 375, 2014-Ohio-4270, 24 N.E.3d 1132, at
¶ 30. Citing Black’s Law Dictionary, the lead opinion in this case equates the term
“substantive error” with the term “substantial error” and therefore concludes that
each of Cobb’s alleged parole-file errors must be reviewed “to determine whether
there is a reasonable possibility that but for the alleged error, the parole board would
have reached a different decision.” Lead opinion at ¶ 8-9, citing Black’s Law
Dictionary at 660.
{¶ 27} But Keith does not require an inmate to prove a “substantive error”
to obtain relief; it merely notes that Keith had in fact done so, going above and
beyond what was required. The requirement that an inmate meet a “but for”
evidentiary threshold was not part of the Keith holding, as demonstrated by the fact
that the court in Keith did not undertake in that case to analyze whether, but for the
misstatement of the number of times Keith had previously been granted parole, he
would have been granted parole at the hearing at issue. Moreover, it is unclear
whether the record in this case is sufficient to allow us to render a judgment on but-
for causation, were we inclined to do so.
{¶ 28} In short, Keith was a case about whether an inmate was entitled to
have the parole authorities take a second look at the contents of his parole file, not
a case about whether or not he was actually entitled to parole. In the single sentence
quoted above, the lead opinion conflates the two issues.
{¶ 29} Purporting to apply this new test, the lead opinion adopts a standard
that would effectively make it unlikely for an inmate to ever prevail on a Keith
claim:
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[W]e do not hold that an inmate can never establish a meritorious
Keith claim unless the alleged error is specifically referred to in the
parole board’s decision.
The question is whether the alleged error, supported by
evidence, may have affected the outcome of the parole hearing. See
Keith [141 Ohio St.3d 375, 2014-Ohio-4270, 24 N.E.3d 1132] at
¶ 28, 30. Because it is apparent here that the parole board did not
rely on the alleged inaccuracy in analyzing the Ohio Adm.Code
5120:1-1-07(A) factors and reaching its decision, Cobb has not
made a credible allegation of a substantive error.
(Emphasis sic.) Lead opinion at ¶ 13. Why is it “apparent” that the parole board
did not rely on the inaccurate information alleged by Cobb in reaching its decision?
In denying Cobb relief, the court of appeals emphasized the absence in the parole
board’s written rationale of the allegedly inaccurate information, 2017-Ohio-1170,
¶ 17, but the above-quoted portion of the lead opinion expressly disclaims any
requirement of express reliance.
{¶ 30} Nevertheless, the lead opinion concludes that the fact that the parole
board articulated some other justification for its decision is proof that the board did
not rely on the allegedly inaccurate information. Thus, the two sentences quoted
above effectively contradict each other: so long as the parole board gives some
explanation for its denial that does not include a reference to the allegedly
inaccurate information, an inmate’s suit for mandamus relief to correct allegedly
false information in his parole file can never succeed, no matter how consequential
or inflammatory the information appears to be. This is, to say the least, a significant
departure from the spirit and language of Keith.
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{¶ 31} As a final note, I acknowledge that we recently characterized the
holding of Keith as “requiring ‘a showing that there may be substantive errors in
[the inmate’s] record that may influence the [OAPA’s] consideration of his
parole.’ ” (First brackets sic.) State ex rel. Keith v. Dept. of Rehab. & Corr., __
Ohio St.3d __, 2018-Ohio-3128, __ N.E.3d __, ¶ 16 (“Keith II”), quoting Keith at
¶ 30. However, based on the above analysis, I believe that this statement in Keith
II presents an inaccurate reading of Keith and should not be followed. Instead, we
should follow the key holding of Keith: “where there are credible allegations,
supported by evidence, that the materials relied on at a parole hearing were
substantively inaccurate, the OAPA has an obligation to investigate and correct any
significant errors in the record of the prisoner.” Keith at ¶ 28.
{¶ 32} I therefore dissent from the court’s denial of a writ of mandamus that
would order the OAPA to investigate Cobb’s first alleged error and, if the error
exists, to correct it and hold a new parole hearing.
FRENCH, J., concurs in the foregoing opinion.
_________________
Michael Cobb, pro se.
Michael DeWine, Attorney General, and B. Alexander Kennedy, Assistant
Attorney General, for appellees.
_________________
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