Petition for Writ of Certiorari — David H. Jacob, Petitioner v. Rosalyn Cotton, Chairperson, Nebraska Board of Parole, et al.

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O UPI, R3N A L

fl FILED

OCT 05 2U8

IN THE

SUPREME COURT OF THE UNITED STATES

PETITIONER

DAVID H. JACOB

-

(Your Name)

Vs.

ROSALYN COTTON, et al.

RESPONDENT(S)

-

ON PETITION FOR A WRIT OF CERTIORARI TO

The United States Court of Appeals for the Eighth Circuit

(NAME OF COURT THAT LAST RULED ON.MERITS OF YOUR CASE)

PETITION FOR WRITOF CERTIORARI

David H. Jacob, pro se

437269

(Your Name)

P.O. Box 2500

(Address)

Lincoln, NE 68542-2500

(City, State, Zip Code)

none

(Phone Number)

.4

QUESTION(S) PRESENTED

The Petitioner first filed a state court declaratory judgment action claiming

that the state Parole Board had (1) made an ex post facto change to parole

suitability standards and (2) that new parole procedures, implemented after

the decision in Greenholtz v. Inmates, 442 U.S. 1 (1976), violated Due Process.

The state courts summarily dismissed these claims for FAILURE TO STATE A CLAIM

for which relief can be granted. The Petitioner then filed an action under

42 U.S.C. §1983 in the U.S. District Court making the same federal constitutional

claims.

QUESTION: Can the U.S. District Court, after first finding the Federal

Petition does in fact allege federal constitutional claims, summarily dismiss

the Federal Petition by giving a collateral estoppel effect to the state court

decision of FAILURE TO STATE A CLAIM without violating the holdings in Haines

V. Kerner, 404 U.S. 519 (1972) and Allen v. McCurry, 449 U.S. 90 (1980)?

i)

LIST OF PARTIES

I J All parties appear in the caption of the case on the cover page.

[xj All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

Rosalyn Cotton, Chairperson of the Nebraska Board of Parole;

Rex Richard, Member, Nebraska Board of Parole;

Randall L. Rehmeier, Member, Nebraska Board of Parole;

Teresa L. Bittinger, Member, Nebraska Board of Parole;

Virgil J. Patlan, Member, Nebraska Board of Parole

All these Defendants were sued in their individual capacities.

All of these Defendants are represented by the Nebraska Attorney General.

TABLE OF CONTENTS

OPINIONSBELOW ..................... ................................................................................... I

JURISDICTION................................................................ . .................................................. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................. 3

STATEMENT OF THE CASE ............................................................................................

REASONS FOR GRANTING THE WRIT .......................................................................... 9

CONCLUSION.......... ......... ....................................... .. . .......................... ......... . ................. . . 13

INDEX TO APPENDICES

APPENDIX A: The May 24th, 2018 Judgment and Opinion of the Court of Appeals

APPENDIX B: The July 27th, 2017 Memorandum and Order of the U.S. District

Court

APPENDIX C: The July 12th, 2018 Order of the Court of Appeals denying Rehearing

APPENDIX : The petition tiled in the U.S. District Court

APPENDIX E

APPENDIX F

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

Allen v. McCurry, 449 U.S. 90 (1980)

7, 9, 10, 11

.

Board of Pardons V. Allen, 482 U.S. 369 (1987) 6 ....... 11

California v. Morales, 514 U.S. 499 (1995) ..........11

Cunningham v. Prime Mover, Inc., 252 Neb 899 (1997) ......10

Daniel v. Fuiwood, 766 F.3d 57 (D.C. Cir. 2014).

.

.....

11

Dent v. West Virginia, 129 U.S. 114 (1889) ..........12

Ditter v. Nebr. Board of Parole, 11 Neb.App. 473 (Neb.App.2002) 6, 12

Doe v. Omaha Public Sch. Dist., 273 Neb 79 (2007) .......10

Garner v. Jones, 529 U.S. 244 (2000) .............11

Greenholtz v. Inmates, 442 U.S. 1 (1976) ...........6, 7, 11, 12

Haines v. Kerner, 404 U.S. 519 (1972) .............7, 9, 11

Hara V. Reichert, 843 N.W.2d 812 (Neb.20I4) ..........8

Jacob v. Cotton, A-15-1037, 2017 WL 773661

.

.

.......

W.F.M., Inc.v; -Cherry Cty.., 279 F.3d 640 (8th Cir. 2002).

.

5, 6, '10

10

Wolff v. McDonnell, 418 U.S. 539 (1974) .............12

STATUTES

Neb.Rev.Stat. §83-1,111(4) ...................3, 4, 12

Neb.Rev.Stat. §63-1,114(1)(b) .................3, 4, 5, 6, 7, 11

CONSTITUTIONAL PROVISIONS

Art. I, §9, U.S. Constitution .................3

14th Amendment, U.S. Constitution ...............3

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[x] For cases from federal courts:

to

The opinion of the United States court of appeals appears at Appendix A

the petition and is

tXi reported at 724 Fed.Appx. 509 (2018)

; or,

I I has been designated for publication but is not yet reported; or,

I I is unpublished.

The opinion of the United States district court appears at Appendix B

the petition and is

or,

[ J reported at

[ I has been designated for publication but is not yet reported; or,

Lxi is unpublished. (2017 WL 3206313)

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

to the petition and is

Appendix

; or,

[I reported at

[I has been designated for publication but is not yet reported; or,

I I is unpublished.

The opinion of the

appears at Appendix

court

-

to the petition and is

; or,

[ II reported at

[ I has been designated for publication but is not yet reported; or,

[ ] is unpublished.

to

JURISDICTI ON

txl For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was May 24th, 2018

[] No petition for rehearing was timely filed in my case.

[x] A timely petition for rehearing was denied by the United States Court of

, and a copy of the

Appeals on the following date: July 12th, 2018

C

order denying rehearing appears at Appendix

[ j An extension of time to file the petition for a writ of certiorari was granted

to and including

in Application No. _A______

(date) on _____________________ (date)

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

I ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[1 A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

[ j An extension of time to file the petition for a writ of certiorari was granted

(date) on

to and including

Application No. .A______

________________

(date) in

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2

I..

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Article I, Section 9 of the U.S. Constitution provides:

No Bill of Attainder or ex post facto Law shall be passed.

Amendment XIV of the U.S. Constitution provides:

Nos State shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due process of law;

.

Nebraska Revised Statute §83-1,114(1)(b) provides:

(1) Whenever the Board of Parole considers the release of a committed

offender who is eligible for release on parole;it:shãll:order his or her

release unless it is of the opinion that his or her release should be deferred

because:

(b) His ir her release would depreciate the seriousness of his or

her crime or promote disresepct for the law;

Prior to the 2003 change, Nebraska Revised Statute §83-1,111(4) (Reissue 1999)

(emphasis added) said:

(4) If the board defers the case for later reconsideration, the committed

offender shall be afforded a parole hearing at least once a year until a release

date is fixed.

After the 2003 change and currently, Nebraska Revised Statute §83-1,111(4)

(Reissue 2008)(emphasis added) says:

(4) If the board defers the case for later reconsideration, the committed

offender shall be afforded a parole 1ev±e at least once a year until a release

date is fixed.

3

STATEMENT OF THE CASE

In August of 1986 the Petitioner was sentenced in a Nebraska state court

to indeterminate life terms for three counts of Second Degree Murder and not

less than 6 years nor more than 20 years on two •counts of using a firearm.

During 1986, Nebraska statutes provided a minimum sentence of 10 years for

the purposes of parole eligibility in Second Degree Murder cases. Under Nebraska's

good time law that applies to the Petitioner he became eligible for parole

on January 17th, 2015.

Prior to reaching that parole eligibility date, a number of state statutes

involving parole procedures and the minimum sentence for Second Degree Murder

were amended. A 1995 amendment to Neb.Rev.Stat. §28-105 raised the prior 10

year minimum sentence for Second Degree Murder to 20 years. In 2003, Neb.Rev.

Stat. §83-1,111-(4) which had provided "hearings" to all offenders eligible

for parole was amended to provide only "reviews."

Prior to the Petitioner becoming eligible for parole, in 2014, the Defendant

Parole Board members "reviewed" the Petitioner's case and defered him to a

"review" to be held a year later in August of 2015. In addition to not providing

a "hearing", at issue in this case is the Board members'. use of the state

statutory reason for their deferal saying:

The nature/circumstances of your offense(s) indicates that an early

release would depreciate from the seriousness of your crime and promote

disrespect for the law.

Except for the use of the word "early," this quotes the language found in

Neb.Rev.Stat. §83-1,114(1)(b). Having witnessed and experienced the actions

of the Parole Board for nearly 30 years, the Petitioner recognized that the

Board had created a silent practice of using the new 20 year minimum sentence

4

Vi

as a more severe suitability standard for offenders convicted prior to its

statutory implementation.

On January 20th, 2015, three days after reaching parole eligibility, the

Petitioner tiled suit in State Court seeking a declaration of his rights under

the Nebraska parole statutes. The tatecourt Petition alleged that the discovery

process would show the Parole Board's decisions in Second Degree Murder cases

would reveal this silent practice. Instead of answering the state complaint,

the Board members, through counsel, filed a motion to dismiss for failure

to state a claim. Without evidence or even a denial of the Petitioner's allegations the state District Court ruled that the Petition failed to state a claim

for which relief could be granted and dismissed it.

Petitioner appealed to the Nebraska Court of Appeals. On the Ex Post Facto

claim that court found:

The Parole Board's reasoning for deterring the review makes no reference

to the changes in [Neb.Rev.Stat.] §28-105 or the minimum sentence

for second degree murder. Section 83-1,114(1) specifically indicates

that the Parole Board may defer, on its own opinion, an offender's

release on parole. Despite the potential changes that may have occurred

in §28-105, there is no indication that the Parole Board considered

those changes. Rather, it used its statutorily permitted discretion.

[See, Jacob v. Cotton, A-15-1037, 2017 WL 773661, p.2; cited on p.6 n.3,

Appendix B].

Again, without the presentation of evidence or accepting the Petitioner's

allegations of a silent practice as true, the Nebraska Court of Appeals made

two fundamental errors on the Ex Post Facto claim. First, that Court refused

to recognize the question of fact by accepting the Board's recitation of the

boilerplate statutory language in §83-1,114(1)(b) over the Petitioner's allega-

5

p.

tion of the silent practice. In other words, the Court found that because

the Board members did not admit to violating the Ex Post Facto clause the

Petition's claim failed. Second, the Court found that the statute gives the

Board discretion to violate the Ex Post Facto prohibition through this silent

practice.

On the Due Proess claim the Court recites to Greenholtz v. Inmates, 442

U.S. 1 (1976), but ignores the constitutional significance of the word "hearing"

in Nebraska law. In Nebraska a "Board hearing" can be subjected to judicial

review in a statutory process called a "petition in Error" under Neb.Rev.Stat.

§25-1901 et seq., whereas a mere "review" canno t . See, Ditter v Nebr. Bd.

of Parole, 11 Neb.App. 473 (Neb.App. 2002). Despite the Petitioner's allegation

that "reviews" can hide the arbitrary decisionmaking (such as the "silent

practice,',)

,

the state Court of Appeals finds the claim fails. [Jacob v. Cotton,

supra, 2017 WL 773661, p.31.

The Petitioner sought Further Review of that case in the Nebraska Supreme

Court. That request was summarily denied without comment.

While the state court proceedings were taking place the Parole Board tad

two more opportunities, in 2015 and 2016, to "review" the Petitioner's case.

The result of those reviews was the same boilerplate statutory language to

defer the petitioner for another year.

In June of 2017 the Petitioner filed his petition under 42 U.S.C. §1983

in the U.S. District Court requesting relief from the Parole Board members'

violation of the ex post facto prohibition of changing parole suitability

standards by holding the old 10 year minimum would provide an "early" release

that would depreciate the seriousness of the offense and promote disrespect

for the law. The petitioner also complained that the change to "reviews,"

from the "hearings" that the decision inGreenholtz V. Inmates, supra, had

found adequate to meet the requirements of Due Process, now violated the

Petitioner's federal constitutional right to not be subjected to arbitrary

decisionmaking without a remedy.

On its own initial review, the U.S. District Court Richard Kopf found

the Complaint does in fact allege federal constitutional claims.' [p.5,

Appendix B]. But then the Court finds the Petitioner cannot "relitigate in

federal court the issues decided against him in the state courts." [Id.]

The U.S. District Court then dismissed the Complaint with prejudice by applying

the doctrine of collateral estoppel. [p. 5 6, Appendix B].

The Petitioner filed a Rule 59(e) motion to alter or amend that judgment.

The Complaint filed in the Federal Court specifically alleged that the process

of the state court proceedings [p.2-3, - Complaint, Appendix Dl and that they

had been inadequate and a subterfuge to evade the federal constitutional issues.

The U.S. District Court had not given these factual allegations the presumption

of correctness required by Haines v. Kerner, 404 U.S. 519 (1972). The Motion

argues that the petitioner had not been given a "full and fair hearing" in

those state court proceedings that would be necessary to apply a collateral

estoppel effect to them; Allen V. McCurry, 449 U.S. 90 (1980). The State Courts

had failed to accept the Petitioner's allegations of the Board's use of the

new 20 year minimum as anafter±the fact suitability change and had failed

to allow the petitioner to present evidence to prove that allegation. The

Motion described how the change to "reviews" from "hearings" was to evade

the Federal Due process guarantee against arbitrary decisionmaking. The Motion

also gave specific examples of how the use of the boilerplate statutory language

in Neb.Rev.Stat. §83-1,114(1)(b) could be used to hide both the arbitrary

and invidious decisionmaking prohibited by the Due Process Clause.

7

District Court Judge Richard Kopf responded by obtaining certain documents

from the record of the state court proceedings and place them into the record

of this case to support his ruling. But those documents show the Petitioner's

state court allegations were not given the presumption of correctness. In

fact, they show the "full and fair hearing" required to apply collateral estoppel

was never provided. Regardless, the Court denied the Rule 59(e) motion and

the Petitioner appealed.

The Petitioner filed briefing in the Eighth Circuit Court of Appeals and

the Court made a summary denial of the appeal citing to a Nebraska Supreme

Court decision, Hara v. Reichert, 843 N.W.21 812, 816-17 (Neb. 2014). The

Eighth Circuit Court said nothing about the U.S. Supreme Court decisions cited

by the Petitioner. [Appendix A]. The Petitioner's request for rehearing by

the panel and en banc was denied without comment. [Appendix C].

The Petitioner now seeks a Writ of Certiorari to examine the Federal Court

decisions below.

8

REASONS FOR GRANTING THE PETITION

The Court should grant the writ in this case for two reasons; (1) The

Eighth Circuit Court of Appeals has affirmed an important federal question

in a way that conflicts with the relevant decisions of the U.S. Supreme Court;

and (2) The Eighth Circuit Court of Appeals has sanctioned the U.S. District

Court's departure from the accepted and usual course of judicial proceedings

as to call for an exercise of this Court's supervisory power.

The Ex Post Facto Violation

The Court of Appeals should not have allowed the District Court's ruling

to stand. In Haines v. Kerner, supra, this Court decided that the factual

allegations of a pro se litigant were to be liberally construed in their favor

and presumed to be true. Not only did the U.S. District Court not accept the

Petitioner's allegations about the inadequacy of the state court proceedings,

they also ignored the fact that the state courts had committed that same error.

The state courts had refused to accept the Petitioner's factual allegation

that the Parole Board was using the new 20 year minimum sentence as a change

to the parole suitability standard for those Second. Degree Murder offenders

who had only received the prior 10 year minimum sentence. Upon reading that

the Nebraska Court of Appeals had concluded that the Parole Board didn't say

they were applying the change to §28-105 to deny parole, the U.S. District

Court should have asked, "How does the Nebraska Court of Appeals come to that

conclusion while assuming the Petitioner's factual allegation to be true?"

Instead.of dismissing the Federal Complaint, the U.S. District Court should

have found the Nebraska Court of Appeals presumed facts not in evidence and

contrary to the Petitioner's state complaints' factual allegations. That would

be the usual course of proceedings that the Haines decision requires. But

the U.S. District did NOT follow flames and, instead, gave a collateral estoppel

effect to the Nebraska Court of Appeals (erroneous) ruling.

The U.S. District Court's application of collateral estoppel to the Petitioner's Federal Complaint was contrary to the U.S. Supreme Court's decision

in Allen V. McCurry, supra, and should not have been affirmed by the Court

of Appeals. The U.S. District Court was required to apply state law standards

for the application of collateral estoppel; 28 U.S.C. 1 ,738 and W.F.M. Inc.

V. Cherry Cty, 279 F.3d 640, 643 (8th Cir. 2002). In Nebraska state law there

are tour required elements to apply collateral estoppel, one of which is a

judgment "on the merits";CunntncfiTam v. Prime Mover, Inc., 252 Neb 899, 901

(1997). But the dismissal for failure to state a claim under Nebraska law

does not test the claim's substantive merits; Doe v. Omaha Public School Dist.,

273 Neb 79, 82 (2007). The Petitioner's state court action was dismissed for

failure to state a claim [Jacob v. Cotton, 2017 WL 773661, p.21. Therefore,

that decision was not "on the merits" and state law would not apply a collateral

estoppel effect to that decision. The records shows the Nebraska Courts did

NOT provide the requirements of a "full and fair hearing". This Court's holding

in Allen v. McCurry, supra, requires a full and fair hearing before collateral

estoppel can be applied.

No court has yet addressed the evidence supporting the factual alleagation

that the Nebraska Board of Parole members are using a later change to the

statutory penalty as a change to parole suitability standards in violation

of the Ex Post Facto prohibition. Both the state and federal complaints alleged

that this was happening, has happened to the Petitioner, and continues to

happen, (Since the time of filing the Federal Complaint the Petitioner has

been "reviewed" twice by the Board, in 2017 and 2018, with the same results.)

10

Both the state and federal Complaints alleged that the records of the Parole

Board decisions using the statutory language from §83-1,114(1)(b) would show

that this is being used against Second Degree Murder offenders sentenced prior

to the 1996 change to the minimum sentence [p.8-11,

I43-58, Appendix D].

The Fiscal Year 2017 Annual Report of the Nebraska Board of Parole is available

online. That report shows the Board denied or deferred parole in 3552 cases

that year, but only 147 denials were done using the reason, "Release would

depreciate Seriousness of Offense". It should be easy to check how many of

those 147 were Second Degree Murder offenders in the same position as the

Petitioner. That evidence has never been provided to nor examined by ANY court.

The U.S. Supreme Court has ruled that after the fact changes to an

inmate's suitability for parole that create a significant risk of increasing

the severity or duration of the punishment violate the ex post facto prohibition; Garner v. Jones, 529 U.S. 244 (2000) and California v. Morales, 514

U.S. 499 (1995). Other Federal Circuits recognize this; see, Daniel v. Fulwood,

766 F.3d 57 (D.C. 2014). The Court should not allow the Eighth Circuit to

evade this federal question by failing to live up to this Court's rulings

in Haines V. Kerner, supra, or Allen v. McCurry, supra.

The Due Process Claim

On the Due Process Claim, both the Nebraska Courts and the U.S. District

Court are trying to rewrite this Court's decision in Greenholts v. Inmates,

442 U.S. 1 (1976). Greenholtz found that Nebraska's parole statutes create

a liberty interest entitled to some protection under the Due Process Clause.

Id., supra, 442 U.S. at 12, and Board of Pardons V. Allen, 482 U.S. 369, 373374 (1987). But Nebraska officials thought they would be clever and change

the parole procedures to have no judicial oversight and still claim the

11

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Greenholtz decision says their procedures are constitutionally adequate. However,

the Greenholtz relied upon the procedure of providing every eligible offender

with a "hearing" was sufficient for Due Process considerations and that is

NOT the current procedure provided to the Petitioner.

The Greenholtz Court found, "Two types of hearings are conducted: initial

parole review hearings and final parole review hearings." Id., supra, 442

U.S. at 4 (emphasis added). The Court also said, "However, since the Nebraska

Parole Board provides at least one and often-two hearings every year to each

eligible inmate, we need only consider whether the additional procedures mandated

by the Court of Appeals are required under the standards set out in Mathews

V. Eldridge, [424 U.S. 319]-at 335... ." Greenholtz, supra, 442 U.S. at 14 (emphasis added). It was these "hearings" that provide the process for correcting

arbitrary decisionmaking in the state Petition in Error procedures. (The touchstone of Due process is protection of the individual against arbitrary action

of the government. Wolff v. McDonnell, 418 U.S. 539, 558 (1974) citing Dent

V. West Virginia, 129 U.S. 114, 123 (1889).)

The word manipulation the State has used here is simple. At the time of

Greenholtz, "hearing" was the noun, "review" was just an adjective which did

not affect the judicial oversight procedure. But the 2003 statutory change

to Neb.Rev.Stat. §83-1,111(4) eliminated annual "hearings" and replaced them

with (now a noun) "reviews's with no judicial oversight available. See, Ditter

v. Board of Parole, supra. Such a change cannot be justified constitutionally

simply by saying, "the Greenholtz decision says our parole procedures are

adequate .,,

The Petitioner's case is a perfect example of the constitutional difference

created by this statutory change. If the Petitioner had been provided with

a "hearing" when he became eligible for parole, he could have challenged the

12

4

4

Board's ex post facto violation in a state Petition in Error procedure; satisfying

the minimum requirements of Due Process. Today, the Petition in Error procedure

is no longer available. The Greenholtz decision and reasoning does NOT support

this. Unless this Court grants the writ, vacates the decision below, and remands

the case to consider this Due Process claim,, the state courts, the U.S. District

Court, and the Eighth Circuit Court of Appeals will have rewritten the Greenholtz

deôision and undermined the minimal requirements of the Due Process protection.

One reason the Petitioner has filed his Complaint is that Nebraska's prison

system is now one of the most overcrowded in the nation. The ACLU has filed

a lawsuit in the U.S. District Court that argues the consequences of this

overcrowding violate the constitution. Sabata, et al. V. NDCS, No.4:17cv3107.

But the ACLU suit says nothing about what caused the overcrowding. It is the

Petitioner's (and much of the other inmate population) that the change in

the parole procedures is at least one of the causes. A proper hearing of

this issue would go along way toward telling state officials that when they

fool around with constitutional requirements there will be unexpected consequences. This issue can show the cause and effect between the parole procedure

changes and the resulting prison overcrowding.

CONCLUSION

The petition for a writ of certiorari shou be granted.

- I . (

David H. Ja

Date: 10/ /

13

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